the Case was That he did reject and eject his Wise without giving of her Alimony for which she had Sentence in the High Commission-Court and the Defendant took those Goods for the Alimony of the Wife And Justice Barckley said That the Defendant might plead Not guilty Lister against Hone in Trover and Conversion for a Hawk 32. JUdgment was given for the Plaintiff but it was moved in arrest of Judgment because it was not said in the Declaration that it was a tame Hawk Dyer 13 Eliz. 306. b. and 43 E. 3. Acc. And here it was said That the words of the Declaration shew that it was a wild Hawk for the words are For taking Accipitricem suum Anglicè vocat ' a Ramish Fawlcon and it was said that Ramish is as much as to say inter ramos agens but that was denied for a Ramish Hawk is a Fowl Hawk by which the contrary is implied that it was tame And here it was farther said for the Defendant that if reclamato be omitted de bonis suis propriis will not help it But it was said in affirmation of the Judgment that although reclamato be omitted yet that de bonis suis propriis will help it and Justice Barckley with all the Justices except the Chief Justice who was absent did agree very strongly That the Judgment should be stayed because that a Hawk is ferae naturae and although it be tamed yet if it fly away and hath not animam revertendi then occupanti conceditur Vide 27 Hen. 8. And for the words de bonis suis propriis they do nothing for the Party had but a Right of Possession and not of Property and if it be it is but a qualified Property as 7 Rep. 17. b. He agreed that if a man hath a wild Hawk in his possession and another man takes it out of his possession Trespass will lie but if it fly away then Capiat qui capere potest And thereupon Judgment was stayed Parkinson against Colliford and others Executors of a Sheriff 33. THe Case was That Judgment was given against another man at the Plaintiffs suit in Debt in the Common Pleas and upon that a Writ of Error was brought in the Kings Bench and the Judgment affirmed and upon that a Fieri facias directed to the Sheriff who levied the Mony and died the Writ being not returned and thereupon Debt was brought against his Executors and these exceptions were taken 1. That the Writ of Fieri facias was not returned and therefore the Sheriff should not be charged in Debt but otherwise if it had been returned 2. That no Debt lieth against the Sheriff although it had been returned 3. Admit that it would lie against himself yet it will not lie against his Executors because it is a Personal wrong and dieth cum Persona 4. That the Fieri facias was awarded out of this Court and it doth not appear whether it were awarded after the Record removed into this Court or not Justice Barckley with whom all the other Judges did agree was of Opinion That Debt would lie against the Sheriff where he sells goods upon a Fieri facias for now he is Debtor in Law and the Defendant discharged against the Plaintiff and â—â—e may plead it and therefore it is reasonable that the Defendant should be answerable to the Plaintiff and he took the difference betwixt Seisin of goods only and where the Sheriff seiseth and selleth them for till Sale no Debt will lie against him And it was said that Accompt will lie against him and if Accompt by the same reason Debt As to the return of the Writ he said that the Sheriff is not compellable to make it and therefore it 's nothing to the purpose and the difference stands where the Sheriff returns a Jury where not in case of Elegit the Writ ought to be returned but not in case of Fieri facias as is 1 H. 7. Clerk of the Hampers Case Farther I conceive that it will lie against the Executor and it is not like the Cases which are Personal where the action moritur cum Persona but here the goods came to the Executors and therefore it is reason to charge them And it is not like the Case in Dier 10 Eliz. 271. a. where it is said An Action of Debt will not lie against the Executor of a Keeper nor an Escape for there the body comes not to the Executor And this very difference may be collected out of Dier in the place aforesaid and the difference will stand where there is a personal wrong done to him and where not And for the Exception That it doth not appear whether the Fieri facias was brought after the Record removed or not To that they said una voce that it appeareth that it was upon these words of Record viz. That the Record was brought hither and here remained and it is not needful to shew that Errour was brought c. Justice Iones I conceive that Debt will lie against the Sheriff because the Sheriff had it delivered to him to deliver over And if I deliver mony to deliver over Debt will lie for him to whom it ought to be delivered So in this Case And because also the Defendant is discharged and may plead the same and therefore there is reason to charge the Sheriff Farther I conceive also that it will lie against the Executors And I shall take this difference where the wrong is ex maleficio for there it dieth with the person and where ex contractu for there it doth not die with the person If I deliver goods to a man and he diâ—th an Action of Trover will lie against his Executors And here the Sheriff could not have waged his Law for the Debt is brought upon matter of Record upon which wager of Law lieth not but upon simple contract And the Sheriff hath here made himself Debtor in Law upon Record Justice Crook It is reason to charge the Sheriff because the Defendant is discharged and may plead that his goods were taken in Execution by the Sheriff in satisfaction of the same Debt And the Executors may be charged because no wager of Law lieth because the Debt is here brought upon matter of Record And he agreed with Justice Iones in the difference betwixt maleficium and contractum And therefore they did all conceive that the Action would lie And in Spekes Case in the Common Pleas it was voted that the Action would lie against the Sheriff 34. In a Habeas Corpus the Case was thus A man would erect a Tavern in Birchin-lane and the Mayor and Communalty for his disobedience because he would not obey them but would erect a Tavern there against their wills they knowing the same to be an unfit place did imprison him And the Opinion of the Court was That he should be remanded because that the Mayor and Communalty had authority over him and they might appoint him a place in which he might
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
thereupon a Prohibition was granted And a Prohibition was granted in this Court upon this surmise That the Custome was that Tithes should not be paid of Pheasants 60. If there be no Venire facias it is not Error but it is helped by the Statute But if there be a Venire facias and it is erroneous it is not holpen by any Statute Trinity-Term 15º CAROLI in the Kings Bench. 61. A Man indicted others at the Sessions-house in the Old-Baily who were acquitted and the Defendants Counsel did remove the Indictment into the Kings Bench and prayed a Copy thereof to the end they might bring a Conspiracie or have other remedy for the wrong done unto them And it was denied by the whole Court unless the Recorder will say That there appeared malice in the prosecution For a man shall not be punished for lawful prosecution upon just ground without malice although the parties be acquitted by Law The King against the Inhabitants of Shoreditch 62. MAster Keeling Clerk of the Crown in the Kings Bench did exhibit an Information against the Inhabitants of Shoreditch for not repairing the High-way And the Issue was Whether they ought to repair it or no And it was said by the Court That by the Common Law the Inhabitants of a Parish ought to repair all High-ways lying within the Parish If prescription did not bind some particular person thereto which was not in this Case And in this Case some of the Inhabitants would have been Witnesses to prove that some particular Inhabitants lying upon the High-way had used time out of minde to repair it but were not permitted by the Court because they were Defendants in the Information wherefore the Jury found That the Inhabitants ought to repair the way 63. Two men and their wives were Indicted upon the Statute of Forcible Entry who brought a Certiorari to remove the Indictment into the Kings Bench. Some of them did refuse to be bound to prosecute according to the Statute of 21 Iac. c. 8. and therefore notwithstanding the Certiorari the Justices of Peace did proceed to the trial of the Indictment and here it was resolved That whereas the Statute is The parties Indicted c. shall become bound c. That if one of the parties offer to find Sureties although the others will not yet that the cause shall be removed for the denying of one or any of them shall not prejudice the other of the benefit of the Certiorari which the Law gives unto them And the Woman cannot be bounden And it was farther resolved that where the Statute saith That the parties Indicted shall be bound in the sum of ten pounds with sufficient Sureties as the Justices of the Peace shall think fit that if the Sureties be worth ten pounds the Justices cannot refuse them because that the Statute prescribes in what sum they shall be bound Like to the Case of Commission of Sewers 10 Rep. 140. a. That where the Statute of 3. H. 8. cap. 5. enables them to ordain Ordinances and Laws according to their wisdoms and discretions that it ought to be interpreted according to Law and Justice And here it was farther resolved that after a Certiorari brought and tender of sufficient Sureties according to the Statute all the proceedings of the Justices of Peace are coram non Iudice The Argument of the Lord Chief Iustice in the Case between James and Tintny in a Writ of Error to reverse Iudgment given in the Common Pleas for Tintney Defendant in a Replevin brought by James the Case was thus vis 64. STowel was Lord of a Mannor and Iames one of the Tenants and there the custome was That the Steward of the Mannor might make Laws and Ordinances for the well-ordering of the Common And the custome was also to Assess a penalty or a pain upon those who brake those Laws and Ordinances And also to prescribe to distrain for the penalty The Steward made an Ordinance That he who put his Cattle beyond such a bound that he should pay 3 s. 4 d. Iames offended against this Ordinance upon which the penalty was assessed and a distress taken by Tintny Defendant in the Replevin Plaintiff and Baily of the Lord of the Mannor And Judgment was given for him in the Common Pleas and damages assessed Upon which a Writ of Error was brought In this Case it was agreed by the whole Court that the Custom was reasonable And the difference taken where the Law or Ordinance takes away the whole profit of the Commoners and where it abridgeth it only or adds limits or bounds to it as in this Case And farther it was agreed That the Commoners are bound to take notice of these Ordinances But in this Case the Erâ—or which was assigned was this That damages were given for the Defendant where no damages ought to have been given And of that Opinion was the Lord chief Justice that no damages ought to have been given and with him agreed Justice Iones but Justice Crook and Justice Barckley è contra It is clear that at the Common Law the Defendant shall not have damages although as to some intent the Avowant be as it were a Plaintiff and Actor 21. H. 6. 2. 6. H. 4. 11. 35 H. 6. 47. Then the Question ariseth only upon these two Statutes viz. 7. H. 6. cap 4. 21. H. 8. c. 19. And first whether our Case be within the Letter of these Laws Admitting that not Whether within the mischief so as that it shall have the same remedy And I conceive it is not within the Letter or Equity of these Statutes Not within the Letter for they speak Where a man distrains for Rents Customs and Services or damage â—easant And in our Case he doth not distrain for any of them for it is manifest that he doth not distrain for Rents Services or Damage feasant And it is as clear that he doth not distrain for Customs for he distrained for a penalty assessed by Custom 1. In Alcocks case it was here resolved That where a prescription was alledged to distrain for an Estray and found for the Avowant that no damages should be in that case For it was here resolved that the Customs intended in 21 H. 8. cap. 19. are Customs which are Services 2ly I hold it not within the Equity for the mischief at the Common Law was That damages were not to be recovered for such Rents Services c. And this penalty is no Service And I conceive clearly That it was not the meaning of the Makers of the Act of Parliament to extend to such penalties And here I further take the difference which is in Pilfords case in the 10 Rep. 116. In all cases where a man at the Common Law cannot recover damages If a Statute give damages there he shall recover no costs for the same is an Act of Creation which gives remedy where none was given before But where there is an Act of Addition which increaseth the damages at the
be at one time customary and go according to the custom and at another guildable And the whole Court Crooke only being absent were against him that the custom was good Hicks against Webbe 83. IN Trespass for a way the Defendant did justifie and said that he had a way not only ire equitare averia sua fugare but also carrucis carreragiis carriare The Plaintiff traversed it absque hoc that he had a way not only ire equitare c. in the words aforesaid and thereupon they were at issue and found for the Plaintiff Glynn moved in arrest of Judgment that the Issue was ill joyned because it was not a direct affirmative but by inducement only And the whole Court was against him And Justice Iones said That if I say that not only Mr. Glynn hath been at such a place but also Mr. Iones without doubt it is a good affirmative that both have been there But they all agreed that the pleading was more elegant than formal 84. In the Case betwixt Brooke and Boothe Justice Barckley said that it is a Rule That if there be two things alledged and one of necessity ought to be alledged and he relies on-only upon the other it is no double Plea As if a man plead a Feoffment with Warranty and relieth upon the Warranty it is not double 85. Justice Barckley said That the Court of the Exchequer they may make a Lease for three Lives by the Exchequer-Seal Clarke against Spurden 86. IN a Writ of Error to reverse a Judgment given in the Court of Common Pleas the case was shortly thus A. wife of I.S. intestate promiseth to B. to whom Adnistration was committed that if he shall relinquish the Administration at the request of C. and suffer A. to Administer that A. will discharge B. of two Bonds In Assumpsit brought by B. in the common Pleas he alledged that he did renounce Administration and suffered A. to Administer and that A. had not discharged him of the two Bonds And it was found for the Plaintiff And thereupon Error was brought because B. doth not shew that he did renounce the Administration at the request of C. And Rolls for the Plaintiff in the writ of Error did assign the same for Error Justice Barckley all the other Justices being absent held that it was Error for consideration is a thing meritorious and all ought to be performed as well the request on the part of C. as the permission of the part of B. which ought to be shewed For perhaps B. was compelled to relinquish it in the Ecclesiastical Court as it might be for of right the wife ought to Administer And therefore it ought to have been averred that it was at the request of C. And therefore if it had been that he should renounce at the charge of C. it ought to be averred that it was at the charge of C. And it was adjourned 87. A man Libelled in the Spiritual Court for Tithes for barren cattle and it was moved for a Prohibition upon this suggestion viz. That he had not other cattle than those which he bred for the Plough and Pale and thereupon Barckley being alone there granted a Prohibition And the same Parson also Libelled for Tithes of Conies and for that also he granted a Prohibition for they are not Titheable if not by custome And here Barckley said That if Land be Titheable and the Tenant doth not plough it and manure it yet the Parson may sue for Tithes in the Ecclesiastical Court North against Musgrave 88. IN Debt upon the Statute of 1 2 Phil. Mar. c. 12. the words of which Statute are That no man shall take for keeping in pound impounding or poundage of any manner of distress above the sum of four pence upon pain of forfeiture of five pounds to be paid to the party grieved And the Plaintiff shewed that his Cattle were distreyned and impounded and that the Defendant took of him ten pence for the poundage And thereupon the Plaintiff brought an Action for the penalty of five pounds and found for the Plaintiff And the Judgment was That he should recover the five pounds and damages ultra praeter the mony taken for the poundage And thereupon a Writ of Error was brought and three things assigned for Error First because the Action was brought for the penalty of five pounds only and not for the six pence which was taken above the allowance of the Statute which ought not to be divided Which was answered by Justice Barckley all the other Justices being absent That notwithstanding it is good for true it is that he cannot bring his Action for fifty shillings part of the penalty because it is entire but here are two several penalties and he may divide and disjoyn them if he will or he may wave the six pence For quilibet potest renunciare juri pro se introducto The second was That he doth not demand that which is ultra praeter the four pence given by the Statute and yet the Judgment is given for that which is not good To which Justice Barckley said That the Judgment was good For no judgment is given for that which is ultra praeter the four pence but only for the four pounds because he doth not demand it And we cannot judge the Judgment to be erroneous by Implication The third Objection was That Costs and Damages are given which ought not to be upon a penal Law For he ought not to have more than the Statute giveth and therefore upon the Statute of Perjury no Costs are given so upon the Statute of Gloucester of Wast the Plaintiff shall recover no more than the treble value But Rolls who was on the contrary said That there are many presidents in the common Pleas that Damages have been given upon this Statute But Barckley and Iones who afterwards came and seemed to agree with Justice Barckley in the whole was against it That no Damages ought to be given and desired that the Presidents might be viewed But here Rolls offered this difference Where the penalty given by the Statute is certain as here upon which he may bring Debt there he shall recover Damages but where the penalty is uncertain as upon the Statute of Gloucester for treble damages the Statute which giveth the treble value and the like there because it is incertain he shall have no more Barckley asked Mr. Hoddesdon If the Informer should recover Damages And he and Keeling Clerk of the Crown answered No but said Damages should be given against him and it was adjourned 89. Skinner Libelled in the Ecclesiastical Court for thâ— Tithes of Roots of a Coppice rooted up And Porter prayed Prohibition And it was said by Iones and Barckley Justiceâ—â— no other Justice being present That if cause were not shewed before such a day that a Prohibition should be awarded because it is ad exheredationem and utter destruction of 〈◊〉 And the Opinion was that the
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
harmless and doth not shew how as he ought to have done but he ought to have pleaded non damnificatus and that had been good without any further shewing which he hath not done and therefore the Plea was not good and it was agreed that the same was not helped by the Demurrer because the same was matter of substance but the Plaintiff might take advantage of it notwithstanding and therefore Judgment was given for the Plaintiff 201. In Debt Judgment was given against the principal whereupon a Scire facias issued forth against the Bail and Judgment upon Nihil dicit was given against them whereupon a Writ of Error was brought and Error assigned that there was no warrant of Attorny filed for the Plaintiff and upon debate whether the warrant of Attorny ought to be filed or on the Court seemed to incline their opinion upon these differences but gave not any Judgment First where it may appear to the Court that there was a warrant of Attorny and where not If there was not any warrant of Attorny there they cannot order the making of one but if there was one they conceived that they might order the filing of it Second difference Where the warrant wanting were of the part of the Defendant and where of the part of the Plaintiff in the Writ of Error if it be of the part of the Plaintiff such a warrant of Attorney shall not be filed because he shall not take advantage of his own wrong the last thing was where the Record by the lachess of the Plaintiff in the Writ of Error is not certified in due time there the warrant of Attorny shall be filed And the Books cited to warrant these differences were 2 H. 8. 28. 7 H. 4. 16. 2 Eliz. Dyer 180. 5 Eliz Dyer 225. 1 2 Phil. Mar. Dyer 105. 15 Eliz. Dyer 330. 20 Eliz. Dyer 363. and 6. El. Dyer 230. Note that it was said by Crawley That it is all one wheâ—e there is no warrant of Attorney and where there is and he said there are many Presidents accordingly and that the same is holpen by the Statute of 8 H. 6. cap. 1 2. But Bankes Chief Justice contrary That it is not helped by the Statute of H. 6. and so it is resolved in the 8 Rep. 162. And he caused the Proâ—onotharies so search Presidents but yet he said they should not sway him against the printed Law because they might pass sub silentio And the Chief Justice observed also that the same is not holpen by the Statute of 18 Eliz. for that helps the want of warrant of Attorny after Verdict only and not upon Nihil dicit as this case is or upon wager of Law or upon confession or non sum informatus And the Court said That it shall be a mischievous case that Attornies should be suffered to file their warrants of Attorny when they pleased and therefore they gave warning that none should be filed after the Term and willed that the Statute of 18 Eliz. cap. 16. should be put in execution Mich. 17º Car. in the Kings Bench. 202. ACertiorare was directed to the Commissioners of Sewers who according to the Writ made a Certificate to which Certificate divers exceptions were taken by Saint-Iohn the Kings Sollicitor First that it appeareth not by the Certificate that the Commission was under the Great Seal of England as it ought to be by the Statute of 23 H. 8. cap. 5. Secondly the Certificate doth not express the names of the Jurors nor shew that there were twelve sworn who made the prâ—sentment as by the Law it ought to be but only quod praesentatum fuit per Iurator ' so that there might be but two or three Thirdly it appears by the Certificate that it was presented by the Jury That the Plaintiff ought to repair such a Wall but it is not shewed for what cause either by reason of his Land prescription or otherwise Fourthly they present that there wants reparation but doth not shew that it lies within the Level and Commission Fifthly there was an Assesment without a presentment contrary to the Statute for it is presented that such a Wall wanted reparation and the Commissioners assessed the Plaintiff for reparation of that Wall and another for which there was no presentment Sixthly the Tax was laid upon the person whereas by the Statute it ought to be laid upon the Laâ—d Seventhly there was no notâ—ce given to the Plaintiff which as he conceived ought to have been by reason of the great penalty which folâ—ows for non-payment of the Assesment for by the Statute the Land ought to be sold for want of payment These were the Principal exceptions taken by the Sollicitor Lane thâ— Princes Attorney took other exceptions First because they assess the Plaintiff upon information for they said that they wâ—re credibly informed that such a Wall wanted reparation and that the Plaintiff ought for to repair it whereas they ought to have done it upon presentment and not upon information or their private knowledge Secondly that they assessed the Plaintiff and for not payment sold the distress which by the Law they ought not to do for that enables them only to distrein and it was intended by the Statute that a Replevin might be brought in the Case for it gives Avowâ—y or Justification of a distress taken by reason of the Commission of Sewers and there ought to be a Replevin otherwise no avowty and if Sale of the distress should be suffered then that priviledge given by the Parliament should be taken away which is not reasonable Keeling of the same side and he said that it was adjudged Pasch. 14 Car in this Court in Hungers case That the certificate of the Commissioners was insufficient because that it was not shewed that the Commission was under the Great Sâ—al of England as by the Statute it ought to be and the Judges then in Court viz. Mallet Heath and Bramston strongly inclined to many of the exceptions but chiefly to that that there wanted virtute Literarum Paten But day was given to hear Counsel of the other side 203. A man acknowledgeth a Statute and afterwards grants a Rent-charge the Statute is afterwards satisfied Whether the grantee of the rent may distrein without suing a Scire facias was the Question which was twice or thrice debated at the Bar but because it was before that Mallet the puisne Judge was Judge the Court gave order that it should be argued again Thornedike against Turpington in the Common Pleas. 204. IN Debt upon a Bond the Defendant demanded Oyer of the Condition and had it which was that the Defendant should pay so much in a house of the Plaintiffs at Lincoln The Defendant pleaded payment at Lincoln aforesaid upon which they were at issue and the Venire facias was De Vicines civitatis Lincoln and found for the Plaintiff And now it was moved in arrest of Judgment that it was a mis-trial because the Venire
by that to discharge themselves which the Defendant here should lose if the Obligation should stand in force as to him only 8 Rep. 136. Sir Iohn Needhams case If a woman Obligee taketh one of the Obligors to be her Husband the same is a discharge to the other Two commit a trespass the discharge of one is the discharge of both yet it is there joynt or several at the will of the party who releaseth But it may be objected that it is a Casual act here and therefore shall not be so prejudicial to the Plaintiff here To that he answered That that shall not help him because it is his own lachess and default and the same Objection might have been made in Piggots case where the Obligation is altered in a material place by a stranger without the privity of the Obligee and yet there it was resolved that the same shall avoid the deed Besides if the Obligee had delivered the same over to another to keep and it had been eaten with Rats and Mice yet that would not excuse him and by the same reason shall not help the Plaintiff here Matthewsons Case C. 5 Rep. differs much from this case because there the Covenants are several and not joynt as in this Case and therefore if the Covenanâ—ee doth release to one of the covenanters that shall not discharge the others For the Cases of 14 H. 8. and Piggots Case they differ much from our Case for there the covenants or conditions against the Law are void ab initio by the construction of the Law and no alteration as in our case by the Act or default of the party by matter ex post facto and therefore those Covenants or Conditions against the Law cannot vitiaâ—e those which were good and according to Law because they took not any effect at all So if a Monk and another be bound the Bond is void as to the Monk and good as to the other because there is no subsequent alteration by the party but the same is void by construction of law ab initio and upon the same reason stands the Case of the Fine put of the other side For which causes he prayed Judgment for the Defendant Note the Court viz. Foster Reeve Crawley and Bankes Chief Justice did strongly incline that Judgment ought to be given for the Defendant and their reason was That if the Obligee by his Act or own lachess discharge one of the Obligors where they are joyntly and severally bound that the same discharges them all but gave day for the further debating of the Case for that this was the first time it was argued 207. By Justice Foster and Bankes Chief Justice a Trust is not within the Statute of 21 Iac. cap. 16. of Limitations and therefore no lapse of time shall take away remedy in Equity for it but for other Actions which are within the Statute and the time elapsed by the Statute there is no remedy in Equity and that they said was always the difference taken by my Lord Keeper Coventry but Justice Crawley said that he had conferred with the Lord Keeper and that he told him that remedy in Equity was not taken away in other Actions within this Statute 208. It was said by the whole Court that they never grant an Attachment without an Affidavit in writing 209. The Case before of the warrant of Attorney was betwixt Firburne and Cruse and was entred Trinit 17 Car. And now it was resolved upon reading of Presidents in Court that no warrant of Attorney shall be made or filed because that it is an error and not helped being after judgment in Nihil dicit that none of the presidents came to our case The greatest part of presidents were these viz. the first was 1 Car. Taylor against Thellwell the same appeared to be upon demurrer and no Judgment given Another was Mich. 3 Car. Peasgrove against Brooke and in that Case it did not appear that any Writ of Error was brought Another was Paseh 5. Car. Tayler against Sands Another Hill 6. Car. Smith against Bland in that it was conceived to be amendment only and it was agreed for Law that where there was a warrant of Attorney it might be amended for any defect in it as where there is a misprision of the name or the like as it is resolved Br. amendment 85. and so is 1 and 2 Phil. and Mar. Dyer 105. pl. 6. expresly where Alicia for Elizabetha in the warrant of Attorney was amended and that after a Writ of Error brought by construction of the Statute of 8 H. 6. and so is 9 E. 4. Br. amendment 47. And Justice Reeve said it cannot appear to us by any of the said Presidents whether there was a warrant of Attorney or not and perhaps upon examination it might appear to the Judges that there was a warrant of Attorny which is helped by the Statute of 8 H. 6. and that might be the reason which caused them to order that it should be filed but that doth not appear to us and therefore the presidents were not to the purpose Besides it doth not appear by any of them whether judgment were given or not and before judgment it may be amended as the Book is 9 E. 4. 14. br amendment 47. Besides in one of them the Plaintiff did neglect to remove the Record which is the very case in Dyer and that was the reason that the warrant of Attorney was filed but in this Case there appearing to be no warrant of Attorney it is not helped by the Statute of 8 H. 6. and after a Judgment and that upon Nihil dicit which is not holpen by the Statute of 18 Eliz and there is no Lachess in removing of the Record by the Plaintiff and for these reasons the whole Court was against the Defendant in the Writ of Error that it was Error and therefore ought not to be amended Note that in this Case it was moved that the warrant of Attorney might be filed in this Court after Error brought in the Kings Bench but observe that if it had been a thing amendable that had been no impediment to it for things amendable before Error brought are amendable after and if the inferior Court do not amend them the superior may and so it is adjudged 8 Rep. 162. in Blackmâ—res case and so is the Case express in the point 1 and 2 Phil. and Mar. Dyer 105. pl. 16. Where a warrant of Attorney was amended in Banco after Error brought and the Record certified This is only my own observation upon the Cale Mich. 17º Car. in the Kings Bench. 210. AN information was brought for the King against Edgerley Carrier of Oxford because that where by the custom of England no Carrier or other person ought to carry above two thousand weight and that with a Waggon having but two wheels and but four horses that the Defendant had used for the space of a year last past to drive Quoddam gâ—statorium
not traversable because that the seism is not material 7 E. 4. 29. Com. 94. 8. Rep. 64. Fosters Case Secondly where the Seigniory is not in question there no traverse of seism so it is in Case of Writ of Escheat Cessavit Rescous c. and therewith agree the Books of 22 H. 6. 37. 37. H. 6. 25. 4. Rep. 11. a. Bevills Case Thirdly where the Lord and Tenant differ in the services there no traverse of the seism but of the tenure but where they agree in the services there the seism may be traversed and therewith agree the Books of 21 E. 4. 64. 84. 20 E. 4. 17. 22 Ass. p. 68. 9 Rep. 33. Bucknells Case and therefore the traverse here is not good First because it is a general traverse of the seism per manus the tenure not being admitted as it ought to be by the fourth rule in Bucknells Case and therewith agreeth 23 H. 6. Avowry 15. Besides it is a Rule in Law That a man shall never traverse the seism of services without admitting of a tenure and in this Case he took the tenure by protestation and therefore the traverse here is not good and therewith agreâ—â— 15 E. 2. Avowry 214. Further the traverse here is not good because he hath traversed a thing not in demand which is the rent for he ought to have traversed the seism of the fealty only for which the distress was taken and not the rent as here he hath done and therewith agreeth 9 Rep. 35. a. and 26 H. 8. 1. But as this Case is he could not traverse the fealâ—y only because that seism of rent is seism of fealty and therewith agreeth 13 E. 3. Avowry 103. 3 E. 2. Avowry 188. 4 Rep. 8. b. Bevills Case and therefore he ought to traverse the tenure True it is as it was objected by my Brother Foster that seism of Rent is not an actual seism of fealty as to have an assise but is a sufficient seism as to avow And we are here in Case of an avowry and therewith agreeth the 4 Rep. 9. a. Bevills Case wherefore I conclude that Judgment ought to be given for the avowant Here note that it was resolved by all the Judges of the Common Pleas that a traverse of seism per manus generally without admitting of a tenure is not good and therefore see 9 Rep. 34. b. 35. a. which seemeth to be contrary Hill 17º Car in the Kings Bench. Hayward against Duncombe and Foster 234. THe Case was thus The Plaintiff here being seised of a Mannor with an advowson appendant granted the next avoidance to I. S. and afterwards bargained and sold the Mannor with the advowson to the Defendants D. and F. and a third person and covenanted with them that the Land is free from all incumbrances Afterwards the third person released to the Defendants who brought a writ of Covenant in the Common Pleas and there Judgment was given that the Action would lie Whereupon Hayward brought a Writ of Error in this Court The point shortly is this Whether the Writ of covenant brought by the Defendants without the third person who released were good or not and that rests only upon this Whether this Action of covenant to which they were all intitled before the release might be transferred to the other Defendants only by the release or not And it was objected that it could not because it is a thing in Action and a thing vested which cannot be transferred over to the other two only by the release but that all ought to joyn in the Action of covenant notwithstanding Rolls contrary because that after this release it is now all one as if the bargain and sale had been made to those two only and now in an Action brought against them two they may plead a seoffment made to them only without naming of the third who released and so it is resolved in 33 H. 6. 4 5 6 Rep. fol. 79. a. Besides this covenant here is a real covenant and shall go to assignees as it is resolved in 5 Rep. Spencers Case and here is as violent relation as if the seoffment had been made to them two only It was objected by Justice Heath What if the other died It was answered perhaps it shall there survive because that it is an Act in Law and the Law may transfer that which the Act of the party cannot because that Fortior est dispositio legis quam hominis c. Booremans Case 235. BOoreman was a Barrister of one of the Temples and was expelled the house and his Chamber seised for non-payment of his Commons whereupon he by New digate prayed his writ of restitution and brought the writ in Court ready framed which was directed to the Benchers of the said Society but it was denied by the Court because there is none in the Inns of Court to whom the writ can be directed because it is no body corporate but only a voluntary Society and submission to Government and they were angry with him for it that he had waived the ancient and usual way of redress for any grievance in the Inns of Court which was by appealing to the Judges and would have him do so now Bambridge against VVhitton and his wife 236. IN an Ejâ—ctione firme upon Not Guilty pleaded a special Verdict was â—ound the case upon the special verdict this A Copyhold Tenant in fee doth surrender into the hands of two Tenants unto the use of I. W. immediately after his death and whether it be a good surrender or no was the question Harris that the surrender is void Estates of Copyholds ought to be directed by the rule of Law as is said in 4 Rep. 22. b. 9 Rep. 79. 4 Rep. 30. And as in a grant a grant to one in ventre sa mier is void so also in a will or devise and as it is resolved in Dyer 303. p. 50. so it hath been adjudged that the surrender to the use of an Infant in ventre sa mier is void and as at Common Law a Freehold cannot begin in futuro so neither a Copyhold for so the surrenderer should have a particular estate in him without a donor or lessor which by the rule of Law cannot be and he took a difference betwixt a Dâ—vise by Will a Grant executed in a devise it may be good but not in a grant executed and here he took a difference where the Grant is by one intire clause or sentence and where it is by several clauses 32 E. 1. taile 21. Dyer 272. p. 30. Com. 520. b. 3 Rep. 10. Dowties Case and 2 Rep. Doddingtons case For instance I will put only the Case in Dyer and the Comment A Termor grants his Term habendum after his death there the Habendum only is void and the grant good but if he grant his Term after his death there the whole grant is void because it is but one sentence So I say in our
paid may inforce a Distribution or not quaere 65. pl. 102. 93. pl. 158. Double Plea Where two things are alleadged and the one of necessity onely or by way of inducement and the party relies onely upon the other that is no double Plea 55. pl. 84. 74. pl. 113. Ejectione Firme Ejectone Firme de uno repositorio nought for the incertainty 96 pl. 166. Ejectione Firme de tanto unius messuagii c. qâ—aâ—tum â—â—at super ripam is nought for the incertainty and so where the Tâ—over of the Jury is such it is nought 97. pl 168. Elegiâ— Upon an Elgit there needs no Liberate otherwise upon a Statute Note the Elegit excepts averia Caruâ—â— 117. pl. 194. Equity Certain special Cases where there shall be remedy in Eqâ—ity where not pa 83. pl. 1â—8 88. pl. 141 90. pl. 145. 93. pl. 159. 99. pl 1â—1 102 pl. 175. 105. pl. 182. 106. pl. 183. 129. pl. 207. Errors In Error to reverse a Judgement in Debt upon an Arbitrament Judgement was reversed first because that in the reference to the Arbitrament there was no word of the submission Secondly because that the entry of the Judgement was considâ—ratum est and per Curiam omitted 7. pl. 16. In an Actâ—on for words Judgement was reversed because that it was averred that the words were spoken inter diversos ligeos and doth not say Cives of the place where they have such an acceptation as also for that the Judgement was Consideratum est and per Curiam Omitted 15 pl 37. In Trespass the Defendant justifies by a special Custom by Vertue of which he did it and doth not say quae est eadem transgressio for which Judgment was reversed 16. pl. 38. Judgment was reversed for want of Pledges 17 pl. 40. Outlawry was reversed because it did not appear where the party outlawed was inhabitant as also for that it did not appear that Proclamations were made at the Parish-church where c. 20. pl. 46. Judgement reversed for the appearance of an Infant by Attorney 24. pl. 53. Oâ—tlawry reversed because the Exigent was Secund. exact ' ad Com' Meum â—bm ' c. 25. pl. 58. A. Wife of I. S. intestate promises to B. to whom Administration was committed that if he would relinquish Administration at the request of C. and permit A. to Administer that A. would c. in Assumpsit by B. he shewed that he renounced Administration and permitted A. to Administer but doth not shew that it was at the request of C. by Barkley Just. it is Error 55. pl. 86. Judgement ought not to be judged erroneous by implication 56. pl. 88. 61. pl. 95. A Writ of Error upon Dower well lies before the Retorn of the Writ of Enquiry of damages but whether a Writ of Error lies in an Ejectione firme before Judgment given upon the Writ of Enquiry quaere 88. pl. 142. Want of Warrant of Attorney for the Plaintiff after Judgment upon nihil dicit is Error and not amendable 121. pl. 201. 129. pl. 209. Writ of Error bearing Teste before the Plaint entered is nought otherwise where is bears Teste before Judgment 140. pl. 112. In an Ejectione firme the Writ was 〈◊〉 armis but it wanted in the Count and whether this is error or amendable or not quaere 140. pl. 213. Escape Upon mean Process if the Sheriff retorn a Cessi and Rescous no Action lies against him for the escape otherwise in case of Execution 1. pl. 1. Estoppel Morgager makes a Lease for years by Deed indented after performs the condition and makes a Feoffment in â—ee the Feoffee claiming undeâ— the Estoppel shall be bound by the Lease 64. pl. 99. If a man bind himself to deliver any thing he is estopped to say that he hath it not 74. pl. 113. Estoppel binds only parties 105. pl. 180. Evidence to an Inquest upon Issues joyned Depositions taken in the Ecclesiastical Court cannot be given in evidence at Law though the parties were dead 120. pl. 198. Executions prayer in execution A second Execution cannot be granted before the retorn of the former 47. pl. 73. Where a man is imprisoned for the Kings Fine and upon a Habeas coâ—pus it is retorned that he is in Execution also for the Damages of the party it ought to be intended at the prayer of the party 5a pl. 80. Executor Administrator An Executor or an Administrator may maintain an Action for any Coâ—tâ—â—ct made to the Testator or Inâ—estate or for any thing which riseth ex contractu 9. pl. 23. Administrator of an Executor shall not sue a Scire Faâ— ' upon a Judgement given for the Testator 9. pl. 24. A Sheriff levies moneys upon a Fâ—â—ri Fas ' and dies Debt will lie against his Executors 13. pl 33. Whether the Executor of a Phâ—llizer shall have the profits of the Writs which are to â—e subscribed with his name or his Successor quaere 90. pl. 147. Expositors of Statutes The Judges are the sole Expositors of Acts of Parliament though they concâ—rn Spiritual matters 90 pl. 148. Extinguishment and Suspension Three covenant joyntly with two severally after one of the covenantors marries one of the covenantâ—es whether the covenant be good or not 103. pl. 176. Fine to the King IF a Carrier spoil the High-ways by drawing a greater weight than is warrantable by the Custom of the Realm he is â—inable to the King 145. pl. 210. Fines of Lands Disseisee levies a Fine to a stranger this doth not give the right to the Disseisor 105 pl. 180. Tenant for life the Reversion to an Ideot an Uâ—cle Heir apparant to the Ideâ—â— levies a Fine and dies Tenant for life dâ—eth the Ideâ—t dies whether the Issue of Uncle who levied the Fire â—â—albe barred by this or not quaere 4. pl. 164. 146. pl. 216. Forcible Entry Restitution cannot be awarded to the Plaintiff if it doth appear that he hath seisin yet the King shall have his Fine and if the Indictment be adtunc adhuc the Defendant keeps the possession forcibly where the Plaintiff was in possession Re-restitution shall be awarded 6. pl. 12. Forgery To forge a Will in writing though without a Seal is forgery within the Statute of 5 Q. ca. 14. Freehold What shall be said a grant of a Freehold to commence at a day to come what not 31. pl. 66. Gardeins of a Church WHere the Custom is for the Parishoners to chuse the Churchwardens the Person by colour of the Cannon cannot chuse one and if the Minister of the Bishop refuse to swear one of them chosen by the Parish a Mandat lies to inforce him to it and if the Parson thereupon doth Libel in the Ecclesiastical Court a Prohibition lies 22. pl. 50. 67. pl. 104. The Gardeins of a Church in London are a Corporation and may purchase Lands to the use of the Church and in the Country they are a Corporation capable to purchase Goods to the
the Process was lest at the Defendants house being sixty miles from London and twelve pence to bear his charges which the party did accept And the party who served the Process promised the Defendant sufficient costs And here Mr. Iones who was of Counsel with the Defendant took three Exceptions 1. Because the Process was not served upon the Defendant as the Statute requires but a Note only thereof and it being a Penal Statute ought to be taken strictly 2. There was but 12 d. delivered to the Defendant at the time of the serving of the Process which is no reasonable sum for costs and charges according to the distance of place as the Statute speaks and therefore the promise that he would give him sufficient for his costs afterwards is not good 3. The party who recovers by force of this Statute ought to be a party grieved and damnified as the Statute speaks by the not appearance of the Witness and because the Plaintiff hath not averred that he had loss thereby by his not appearance therefore he conceived the Action not maintenable For the first the Court was clearly against him because it is the common course to put divers in one Process and to serve Tickets or to give notice to the first persons who are summoned and to leave the Process it self with the last only and that is the usual course in Chancery to put many in one Subpoena and to leave a Ticket with one and the Label with another and the Writ with the third and that is the common practice and so the Statute ought to be expounded But if there be one only in the Process there the Process it self ought to be left with the party For the second the Court did conceive That the acceptance should bind the Defendant but if he had refused it there he had not incurred the penalty of the Statute For he ought to have tendred sufficient costs according to the distance of the place which 12 d. was not it being 60 miles distant But for the third and last Exception the Court was clear of Opinion That the Action would not lie for want of Averment that the Plaintiff was damnified for the not appearance of the Defendant And so it was adjudged that the Plaintiff Nihil capiat per Billam 44. The Opinion of the Court was That whereas one said of another That he will prove that he hath stollen his Books that the words are actionable for they imply an affirmative and are as much as if he had said That he hath stollen my Books And so if I say of another That I will bring him before a Iustice of Peace for I will prove that he hath stollen c. although the first words are not actionable yet the last are Molton against Clapham 45. THe Defendant upon reading Affidavits in Court openly in the presence and hearing of the Justices and Lawyers said There is not a word true in the Affidavits which I will prove by forty Witnesses and these words were alledged to be spoken maliciously And yet the Court was clear of Opinion that they will not bear Action And the reason was because they are common words here and usual where an Action is depending betwixt two for one to say That the Affidavit made by the other is not true because it is in defence of his cause And so it was here The Defendant spake the words upon the reading of the Affidavits in a cause depending betwixt the Plaintiff and the Defendant And therefore if I say That J. S. hath no Title to the Land if I Claim or make Title to the Land Or if I say That J. S. is a Bastard and entitle my self to be right Heir the words are not actionable because that I pretending Title do it in defence thereof And Justice Barckley said That there are two main things in Actions for words the words themselves and causa dicendi and therefore sometimes although that the words themselves will bear Action yet they being considered causa dicendi sometimes they will not bear Action Now in our Case causa dicendi was in his own defence or his Title and therefore they will not bear Action 46. Outlawry was reversed for these two Errors 1. Because it was not shewed where the party Outlawed was inhabitant 2. Because it was shewed that Proclamations were made but not that Proclamation was made at the Parish-Church where c. Buckley against Skinner 47. THere was Exception taken because that the Defendant pleaded and justified the Trespass cum equis and said nothing to the Trespass done porcis bidentibus And the Opinion of the Court was That the Plea was insufficient for the whole And Justice Iones said That if several Trespasses are done to me and I bring Trespass and the Defendant justifie for one or two and sayeth nothing to the other that the whole Plea is naught because the Plea is intire as to the Plaintiff and the demurrer is intire also But Justice Barckley was of Opinion that the Plea was naught quoad c. only and that Judgment should be given for the other Vide 11. Rep. 6. b. Gomersall and Gomersalls Case 48. A man pleaded a descent of a Copy-hold in Fee The Defendant to take away the descent pleaded That the Ancestor did surrender to the use of another absque hoc that the Copy-holder died seised And the Opinion of the Court was That it was no good traverse because he traversed that which needed not to be traversed for being Copy-hold and having pleaded a surrender of it the party cannot have it again if not by surrender Like the Case of a Lease for years Helliers Case 6 Rep. 25. b. For as none can have a Lease for years but by lawful conveyance so none can have a Copy-hold Estate if not by surrender But if a man plead a descent of inheritance at the Common Law there the defendant may plead a feoffment made by the Ancestor absque hoc that he died seised because he may have an estate by disseism after the feofment Traverse of the descent and not of the dying seised is not good so was it adjudged in this Court Vide 24 H. 8. Dyer 49. It was moved in Arrest of Judgment upon an Action of Trespass upon the Statute of 2 E. 6. cap. 13. because that the Plaintiff said that the Defendant was Occupier only and did not shâ—w how he occupied or what interest he had And the 〈◊〉 â—pinion of the Court was that he need not because here he makes no Title and whosoever it be that taketh the Tithe is a Trespasser And therefore Justice Iones said That it was adjudged in this Court that an Action lieth against the disseisor for the Tithes so against a servant and so if one cut them and another carry them away an Action lieth against any of them 50. The Parish of Ethelburrow in London alledged a custome that the greater part of the Parishioners have used to
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
which cometh to the benefit of the Parson there if he demand Tithes of the thing in lieu whereof this is done that a Prohibition shall be granted And there is another rule That Custom may make that titheable which of it self is not titheable And here he said to Dr. Skinner being then in Court That he had two matters to help him and if any of them be found for him that a Prohibition ought not to be awarded 101. Justice Barckley said That if a man be living at the day of Nisi prius and dieth before the day in Banck the Writ shall not abate So if a man be living the first day of the â—â—rliament and dieth before the last day yet he may be Attainted and the reason is because in the eye and judgment of Law they are but one day by relation which the Law makes 102. There were three Brothers the Eldest took Administration of the goods of the Father and after Debts and Legacies paid the younger Brothers sued the eldest in the Ecclesiastical Court to compel him to distribute the Estate And thereupon a Prohibition was prayed and denied by the Court for they having Jurisdiction of the Principal may have Jurisdiction of the Accessary 103. A. Libelled against B. in the Spiritual Court for these words Thou art a Drunkard and usest to be Drunk thrice a week And upon that 150 Caroli in Easter-Term as you may see before a Prohibition was prayed and granted And now Littleton the Kings Sollicitor came in Court and moved for a Consultation and he said that the Statute of Articuli Cleri gave power unto the Ecclesiastical Court to have conusance of those and the like words Register 49 F. N. B. 51. They may hold plea for defamation as for calling Adulterer or Usurer 13 H. 7. Kellaway 27 H. 8. 14. And he cited many Judgments in the like cases where Prohibitions had not been granted and amongst others this Case Mich. 20 Iac. inter Lewis Whitton Libel in the Ecclesiastical Court for calling him Pander and no prohibition granted And the like Case was for calling another Pimp and no Prohibition granted Justice Iones That a Prohibition should be granted for they have conusance of defamation for any thing which is meerly Spiritual or which doth concern it where they have conusance of the principal else not as in Heresie Adultery and the like but in this Case they have not Conusance of the principal True it is that it is peccatum But if they should punish every thing which is Sin they would altogether derogate and destroy the Temporal Jurisdiction And therefore if I say that another is an Idle man or envious these are deadly Sins and yet they have not Conusance of them And he cited Coltrops Case adjudged in the Common pleas which was our very Case in point and there he said that upon solemn debate it was adjudged That a Prohibition should be awarded Bramston Chief Justice agreed Barckley contrary That a Consultation should be awarded and he said in many Cases although they have Jurisdiction of the principal yet they shall not have Conusance as in the Case of 22 E. 4. tit ' Consultation But he said that the Offence of Drunkenness is mixt and is an offence against the Spiritual and Common Law also and if it be mixt both may hold plea and Adultery and Murder are the common effects of Drunkenness which are offences against both Laws and therefore he shall be punished by both But yet Barckley yielded to the Judgment cited by Iones And therefore the whole Court Crooke being absent was That a prohibition should be awarded 104. Rolls moved this Case The Parishioners of a certain Parish in Devonshire did alledge a Custom to chuse the two Churchwardens of the Parish and they did so the Parson chose another and the Archdeacon swore one of the Church-wardens chosen by the Parish and refused to swear the other but would have sworn him who was chosen by the Parson And because they did refuse him they were Excommunicate Rolls prayed a Mandat to the Archdeacon to compel him to swear the other chosen by the Parish and a Prohibition also by reason of the Excommunication And he cited a preeedent for it which was the case of Sutton-Valence in Kent And the whole Court Crooke being absent inclined to grant them for they said they conceived no difference betwixt London and the Country as to that purpose for as in London they are a Corporation and may take Land for the benefit of the Church So throughout England they are a Corporation and capable to take and purchase Goods for the benefit of the Church And therefore they did conceive there was no difference See the case before the case of the Parish of Saint Ethelborough London 105. Keeling moved to quash an Indictment of Rescous because it is shewed that the Rescous was at W. and doth not shew that W. was within this County and if it was not within the County then it was an Escape and no Rescous And we cannot aver in this case that it was out of the County Farther it was not shewed where the Rescous was so that upon the matter it is no Arrest nor was the Indictment vi armis as it ought to be As to the first the Court strongly inclined that they might well intend it to be within the County because the Indictment says in Com. meo apud W. tent But for the other Exceptions the Indictment was quashed 106. In Trespass of Assault and Battery and Wounding the Defendant pleaded Not Guilty as to the Wounding and pleaded special matter of justification as to the Assault and Battery and found for the Plaintiff and it was moved in arrest of Judgment That the plea was repugnant for Assault and Battery doth imply Wounding and therefore it is repugnant for him to justifie it for it is a confession of wounding But Justice Crooke and Justice Barckley the others being absent were clear that the plea was good for so is the common form of pleading and farther he might be guilty of the Battery and not of the wounding for Crooke said Wounding implied Assault and Battery but not è contra Brookes against Baynton 107. IN a Writ of Error to reverse a Judgment given iâ— the Court of Common pleas in Trespass for assault battery and wounding it was assigned for Error by Maynard That there was variance betwixt the Original and the Declaration for the Original was only of Battery and Wounding of himself and he declared of Battery and wounding of him and his horse also for he said that quendam equum upon which the Plaintiff equitavit percussit its quod cecidit c. and that was not helped by the Statute But Rolls contrary and here is no variance for the alledging of striking of the horse was only inducement to alledge the Battery of himself for he doth not bring the Action for the beating of his horse for it was not alledged
that it was his own horse but quendam equum and for that reason by the whole Court the Judgment was affirmed More of the Case of Leake against Daweâ— 108. SErjeant Mallet for the Plaintiff That the Scire faâ—â—â—s is good notwithstanding the exceptions for these reasons First because it is not a Declaration but a Writ which is not drawn by Counsel and it is to declare the matter briefly but if it were in a Declaration yet I hold it good because he saith that it was modo adhuc seisitus existit which as I conceive helps it and besides it is not his title but the title of his Adversary which he is not bound to plead so exactly as his own title See for that 14 Eliz. Dyer 204. 2 Car. beswixt Green and Moody in Audita Querela he shewed that there was Debt brought upon a Lease for years to begin at a day to come and did not shew whether the Lessee entred before the day or not so as he might be a disseisor and yet notwithstanding it being in Audita querela which is an equitable Action it is good Hil. 1 Iac. betwixt Blackston and Martin in this Court a Scire facias was brought to avoid a Statute and it was shewed that the Defendant was Tenant but doth not shew how Tenant but it said ad grave damnum which could not be if he were not lawful Tenant and therefore adjudged good notwithstanding that general allegation See new Book of Entries Mollins case 98 99. a strong case to this purpose Besides he said That here issue was taken upon another point Whether he bargained or not and therefore he conceived in this Scire facias that it is not hâ—râ— needful to shew the Inrolment and for these reasons prayed Judgment for the Plantiff Serjeant Wild for the Defendant That the shewing of the Inrolment is not helped by the Issue joyned being matter of substance for he saith that virtute cujus and of the Statute of 27 H. 8. of uses that the Defendant was seised and we ought not to intend an Estate by any other means or seisin than himself hath alledged And thâ—refore it ought to be adjudged upon his own pleading whether the Defendant hath any estate without inrolment or entry by force of the Statute of Uses And I conceive he hath not True it is that all circumstances ought not to be pleaded but the substance viz. the Inrolment and therefore it ought to be pleaded as Fulmerston and Stewards case is in the Commentaries and 2 Eliz. Dyer And no estate passeth without Inrolment not a Fee-simple for then there ought to be Inrolment according to the Statute and no estate at will can pass without Entry for that is as opposit ' in objecto that a man shall be tenant at will against his will for his Entry proves his intent to hold at will For Littleton saith By force whereof he is possessed so that there ought to be possession to make an Estate at will And in case of a Lease for years although it be true that he is a Lessee for years to many purposes before Entry yet an Entry ought to be pleaded And Dyer 14. is non habuit non occupavit is no good plea in a Lease for years contrary in the case in a Lease at will which is a strong proof that he is not Lessee at will before entry 3 Iac. betwixt Bellingham and Fitzherbert 5 El. Dyer 10 Eliz. Mockets case Mich. 15 Iac. betwixt Coventry and Stacie resolved that a release to the Bargainee before Inrolment is not good And by consequence he hath not an estate at will before Inrolment or Entry made for if he had the Release should be good 18 H. 8. the Lord Lovells case that no estate at Will Lastly Parrolls font plea and the case of a man shall not be taken to be otherwise than he hath pleaded it and he having pleaded that virtute cujus and of the Statute of Uses that the Defendant was seised he shall be concluded thereby 5 H. 7. A man shewed that another licenced him to enter into his land and occupy for a year it is not good but he ought to plead it as a Lease Besides the virtute cujus is not traversable as the 11 Rep. Pridle and Nappers case is Rolls accord and he said That if it shall be construed That the Conusee shall have an estate by Disseisin the Plaintiff ought to plead it that the Defendant was seised by way of disseisin And where it was objected That this is a Writ and not a Declaration he answered It is a Writ and Declaration also and therefore he ought to declare his case at large and the defect of the Conveyance viz. the want of Inrolment is not supplied by the virtute cujus And he having made that his Title you ought to judge upon it and not otherwise But the whole Court viz. Bramston Ch. Just. Crooke Iones and Barckley Justices That the Scire facias was good for it was said that the Defendant perquisivit sibi heredibus suis and concludes virtute cujus and of the Statute of Uses he was seised which is a good averment that he hath a Fee and it was not material how he hath it and he need not shew his Title so fully being a stranger to it And this being an equitable Action if the Court upon this Writ shall conceive sufficient matter upon which the Plaintiff may bring his Action it is good and the Court ought to give Judgment for him for being but matter of form it is not material unless a Demurrer had been special upon it And wheresoever there is damnification there the Court ought to give Judgment for the Plaintiff notwithstanding a defect of form in the Writ And Barckley said That if a man be seised of Bl. acre and Wh. acre and acknowledgeth a Statute and afterwards makes a Lease for years of Wh. acre the remainder over in Fee then the Conusee purchase Bl. acre and extendeth the land of the Lessee for years he held that he in the remainder should have an Audita querela or a Scire facias for the damnification which came to his interest And he held that he who had but interesse termini should have an Audita querela That one jointly only might have an Audita querela and that the death of one of them should not abate the Writ And he held that Cestui que use before the Statute might have an Audita querela all which proves it to be but an equitable Action upon which the Law doth not look with so strict an eye as upon other Actions And as to the Objection which was made by Râ—lls that he ought to shew That the Conusee had an estate by disseisin Iones was against that for that no man is bound to betray his Title And for these reasons it was adjudgâ—d by the whole Court That the Judgment should be affirmâ—d 109. A Writ of
breach in non faciendo and saith that he is ready to do the thing which he promised but that the other refused to accept of it Notwithstanding the breach is well laid and the Action well lieth for it was idle and more than the Plaintiff was compelled to do to shew that paratus est to do the thing which he promised So that if there were a breach upon the part of the Defendant it is sufficient and if there was a breach on the Plaintiffs part the Defendant ought to bring his Action for it And the difference was taken by Bramston Where the promise is conditional and where absolute as in our case And agreeing with this difference it was said at the Bar and Bench That it was adjudged 115. Hutton moved to quash certain Presentments because they were taken in a Hundred-Court which is not the Kings Court and therefore coram non Iudice It was said by Justice Iones That a Hundred may have a Leet appendant to it and then they were lawfully taken Barckley and the whole Court answered because it doth not appear to the Court whether there was so or not that the Presentments were void 116. Concerning damage clear It was agreed that it was hard that the Plaintiff should be stopt of his Judgment until he had paid his damages clear For perhaps if the Defendant be insolvant the Plaintiff should pay more for damages clear than he should ever get And therefore the Court was resolved to amend it This damage clear is twelve pence in the pound of the damages given to the party in this Court and two shillings in the Common pleas See the Register where is a Writ for damage clear Harris against Garret 117. IT was agreed by the whole Court that it is no good plea to say That such an one was bound in a Recognisance and not to say per scriptum obligat ' and to conclude that it was secundum formam Statuti doth not help it But in a Verdict it was agreed to be good And according to this difference it was said by the Court That it was adjudged in Goldsmiths case and Fulwoods case 118. It was agreed by the Court that upon a Certiorari to remove an Indictment out of an Inferiour Court that the Defendant shall be bounden in a Recognisance to prosecute with effect viz. to Traverse the Indictment or to quash it for some defect And if he doth not appear an Attachment shall issue out against him Iustice Crooks Case 119. IT was agreed by the Court That although a Bill be preferred in the Starchamber against a Judge for Corruption or any other for any great misdemeanour yet if the Plaintiff will tell the effect of his Bill in a Tavern or any other open place and by that means scandalize the Defendant that the same is punishable in another Court notwithstanding the suit dependant in the Starchamber And so Iones said that it was adjudged in a Bill in the Starchamber against Justice Crooke which was abated because it was brought against him as Sir George Crooke only without addition of his Office and Dignity of Judge Trinit 16º Car ' in the Common Pleas. 120. AN Apothecary brought an Action upon the Case upon a promise for divers Wares and Medicines of such a value and shewed them in certain The Defendant pleaded in Bar that he had paid to the Plaintiff tot tantas denarior ' summas as these Medicines were worth and doth not shew any sum certain And the plea was holden to be no good plea wherefore Judgment was given for the Plaintiff 121. A Contract was made betwixt A. and B. Mercers That A. should sell to B. all his Mercery Wares and take his Shop of him In consideration of which A. promised that he would not set up his Trade in the same Town And adjudged a good Assumpsit in the Kings Bench as Littleton Chief Justice said But if one be bound that he will not use his Trade it is no good Bond. 122. Rolls moved this Case A Writ of Error was brought upon a Judgment given in Yarmouth and the Case was thus A. and B. were bound to stand to the Arbitrament of I. S. concerning a matter which did arise on the part of the wise of B. before coverture I. S. awarded That A. should pay to B. and his wife ten pounds at a place out of the Jurisdiction And thereupon upon an Action brought upon the Bond a Breach was assigned for not payment of the mony at the place And here it was objected That it was Error because it was there assigned for Breach the not payment of the mony at a place out of Jurisdiction and for that cause the Judgment was not well given Secondly because that the Award was That payment should be made to B. and his wiâ—â— which was out of the Submission But notwithstanding Judgment was affirmed by the whole Court. For as to the 〈◊〉 issue could not be taken upon payment or not payment oâ— of the Jurisdiction because it was not Traversable As 〈◊〉 the second the Controversie did arise by reason of the wiâ—e and therefore the Award was within the Submission beiâ—â— made that the payment should be to both 123. It was said by the Court that it was one Kellway Case adjudged in this Court That a Promise made to an Atturny of this Court for Solliciting of a Cause in Chanceâ—â— was good and that it was a good consideration upon whiâ—â— the Atturny might ground his Assumpsit For it was resâ—â—ved That it was a lawful thing for an Atturny to Sollicite 124. The Court would not give way for Amendments Inferiour Courts 125. By Iones and Barckley Justices If there be an insufficient Bar and a good Replication after a Verdict theâ—â— shall be a Repleading Contrary where there is no Verdict Smithson against Simpson 126. A. And B. were bound to stand to and observe suâ—â— Article Agreement Order or Decree as thâ— Kings Council of the Court of Request should make A brought an Action upon the Bond against B. and pleaded that the Kings Councel of the Court of Request made such Order and Decree and that the Defendant did not observe it The Defendant pleaded That the King and his Council did not make the Decree and adjudged by the Court that the Plea was not good 127. Sir Matthew Minkes was Indicted of Manslaughter and found Guilty And it was moved by Holâ—orne of Counsel with Sir Matthew that the Iudictment was insufficient because there was dans c. without adtunc ibid. according to Presidents as also because it was plagam sen contusionem which is incertain as also that the party killed languebat à pred' 15 die usque decimam sextam And he said That there was no time between those two days but it ought to have been That he languished from such an hour till such an hour and that he said were the ancient Presidents And he said That an Indictment that A.
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
pay to the Plaintiff such costs as shall be delivered by note of the Attorneys hand and it was here adjudged that there needs no averment because it was to be done by a stranger but otherwise it had been if it had been to be done by the Plaintiff himself and by the Justices the only question here is Whether the Attorney shall be taken for a stranger or not Justice Foster that the Defendant ought first to make his election which is to pay either the eight pound which is certain or the costs which shall be delivered by a note of the Attorney Besides here the Attorney is a stranger because the suit is ended and to the Defendant he is totally a stranger and therefore he ought to seek him to have the note delivered to him But notwithstanding he did conceive that as this Case is Judgment ought to be stayed because the Plaintiff hath not well entitled himself to the Action because he hath not averred that there were costs expended in such a suit and in the Case ciâ—ed by Rolls the Plaintiff did aver the costs incertain Justice Crawley it is without question the Defendant hath Election in this case but as this Case is he ought to have notice and if the Case had been such that the Plaintiff himself had been to have delivered the note then without question there ought to be notice and here the Attorney is no stranger but is a servant to the Plaintiff as every Attorney is And I conceive that if the Case had been that the Plaintiffs servant had been to deliver such a note that there notice ought to be given And for want thereof in this Case I conceive that the Judgment ought to be stayed Bankes Chief Justice I doubt upon the different Opinions of my Brethren whether Judgment ought to be stayed or not I agree that the Defendant hath Election in this Case and further I agree that where a thing is to be done by the Plaintiff or Dâ—fendant himself there notice ought to be given but otherwise in Case of a stranger and upon this difference stands our Books as 10 H. 7. and all our Books but the Question here is Whether the Attorney be a stranger or not and I conceive that it is not in the power of the Plaintiff to compel him to bring the note and is all one as a stranger and therefore the Defendant ought to seek the Attorney to deliver this unto him but the Case was adjourned because Justice Reeve was not present in Court 187. A. said to B. Thou hast killed my Brother for which B. ought an Action upon the Case and by Serjeant Whitfield it will not lie because it is not averred that the Brother of the Defendant was dead at the time and if he were not dead then it is no slander because the Plaintiff is not in danger for it 4 Rep. 16. a. Snaggs Case Aâ—â— Serjeant Evers contrary because the words imply that he is dead and besides in the Innuendo it is also shewed that he was â—ead for that is the innuendo C. c. fratrem nuper mortuum But by the whole Court the words are not actionable without averment that he was dead and the Innuendo doth not help it Hobarts Rep. p. 8. Miles and Iacobs Case acc 188. A Frenchman had his Ship taken by a Dunkirk upon the Sea and before that it was brought infra praesidia of the King of Spain it was driven by a contrary wind to Waymouth and there the Dunkirk sold the Ship and Goods to a Lord in Waymouth whereupon the Frenchman having notice of his ship and goods to be there libelled in the Admiralty pro interesse suo against the Lord the Vendee of the Ship shewing that it was taken by Piracie and not by Letters of Mart as was pretended and thereupon a Prohibition was prayed and by Foster a Prohibition ought to be granted for whether the Dunkirk took it by Letters of Mart or as a Pirate it is not material the sale being upon the Land and infra corpus comitatus and so he said it was adjudged in such a case for whether the sale were good or not Non constat Justice Crawley conceived it should be hard that the sale being void if it were taken as a Pirate or by Letters of Mart not being brought infra prâ—sidia of the King of Spain that by this means you should take away the Jurisdiction of the Admiralty but he said he did conceive it more fit for the Frenchman to have brought a Replevin which he said lieth of a Ship or Trover and Conversion and so have had the matter found specially Bankes Chief Justice conceived that there should be a Prohibition otherwise upon such pretence that it was not lawful prize and by consequence the sale void you would utterly take away the Jurisdiction of the Common Law But because there was some misdemeanor in the Vendee the Court would not award a Prohibition but awarded that the buyer should have convenient time given him by the Court of Admiralty to find out the seller to maintain his Title and in the mean time that he give good caution in the Admiralty that if it be found against him that then he restore the ship with damages But note the Court did agree Justice Reeve only absent that if a ship be taken by Piracie or if by Letters of Mart and be not brought infra praesidia of that King by whose subject it was taken that it is no lawful prize and the property not altered and therefore the sale void and that was said by the Prâ—ctoâ— of the Frenchman to be the Law of the Admiralty Rudston and Yates Case 189. RVdston brought an Action of debt upon an Obligation against Yates for not performance of an Award according to the Condition of the Bond the Defendant pleaded that the Arbitrators Non fecerunt arbitrium upon which they were at issue and found for the Plaintiff and it was now moved in arrest of Judgment by Trevor that the Defendant was an Infant and therefore that the submission was void and by consequence the Bond which did depend upon it and he conceived the submission void First because it is a Contract and an Infant cannot contract and he took a difference betwixt acts done which are ex provisione legis and acts done ex provisione of the Infant an Infant may bind himself for his diet schooling and necessary apparel for that is the provision of the Law for his maintenance but a Bond for other matters or Contracts of other nature which are of his own provision those he cannot do Secondly an Arbitrator is a Judge and if an Infant should be permitted to make an Arbitrator he should make a Judge who by the Law is not permitted to make an Attorny which were against reason Thirdly it is against the nature of a Contract which must be reciprocally binding here the Infant should not be bound and the man of full
age should be which should be a great mischief And where it is objected it may be for his benefit To that he answered that the Law will not leave that to him to judge what shall be for his benefit what not and to this purpose amongst other he cited it to be adjudged That where an Infant took a shop for his trading rendring renâ— and in debt brought for the rent the Infant pleaded his Infancie the other replied that it was for his benefit and livâ—lihood and yet it was adjudged for the Infant vid. 13 H. 4. 12. 10 H. 6. 14. Books in the point and therefore he prayed that Judgment might be stayed Bramston Heath and Mallet Justices Barckley being then impeached for High Treason by the Parliament were clear of Opinion That the submission by an Infant was void and they all agreed That if the Infant was not bound that the man of full age should not be bound so that it should be either totally good or totally void But Ward who was of Counsel with the Plaintiff said that the case was not that the infant submitted himself to the award but that a man of full age bound himself that the Infant should perform the Award which was said by the Court quite to alter the Case To that Trevor said that the case is all one for there cannot be an Award if there be not first submission and then the submission being void the Award will be void and so by consequence the Bond and to prove it he cited 10 Rep. 171. b. where it was adjudged that the non-performance of a void Award did not forfeit the Bonâ— and many other Cases to that purpose And the Court agreed That if the Condition of a Bond recite that where an Infaâ—â— hath submitted himself to an Award that the Defendant doth bind himself that the Infant shall perform it that the samâ— makes the Bond void because the submission being void allâ— void and therefore day was given to view the Record 190. A. and B. are indicted for murder B. flies and A. brings a Certiorare to remove the Indictment into the Kingâ— Bench Whether the whole Record be removed or but partâ— Keeling the younger said that all is removed and that theâ— cannot be a Transcript in this Case because he said the Writ saith Recordum processus cum omnibus ea tangentibus but the Chief Justice doubted of it and he said that the Opinion of Markham in one of our Books is against it and he said it should be a mischievous case if it should be so for so the other might be attainted here by Outlawry who knew not of it and note that Bramston Chief Justice said That the Clerk of the Assises might bring in the Indictment propriis manibus if he would without a Certiorare 190. A man was outlawed for Murder and died his Administrator brought a Writ of Error to reverse the Outlawry and it was prayed that he might appear by Atturney and by Bramston Chief Justice and Justice Mallet none other being then in Court it was granted that he might for they said that the reason wherefore the party himself was bound to appear in proper person is that he may stand rectus in Curia and that he may answer to the matter in fact which reason fails in this case and therefore the Administrator may Appear by Attorney 191. One said of Mr. Hawes these words viz. My Cozen Hawes hath spoken against the Book of Common Prayer and said it is not fit to be read in the Church upon which Hawes brought an Action upon the case and shewed how that he was cited into the Ecclesiastical Court by the Defendant and had paid several sums c. The Defendant denied the speaking of these words upon which they were at issue and it was found for the Plaintiff and now it was moved by Keeling for stay of Judgment That the words are not Actionable as to say A man hath spoken against a penal Law which doth not inflict punishment of life and member will not bear Action and the punishment which is inflicted by the Statute of 1 Eliz. cap. 2. is pecuniary only and not corporal but in default of payment of the sum that he shall be imprisoned for such a time which meerly depends upon the non-payment and is incertain And by the same reason he said to say of a man that he hath not Bowe and Arrows in his house or not a Gun or to say of a man That he hath spoken against any penal Law whatsoever would bear Action which should be unreasonable wherefore he prayed that Judgment might be stayed Brown contrary the words are actionable because that if it was true that he spoke them he subjected himself to imprisonment by the Statute of 1 Eliz. although not directly yet in default of payment so as there might be corporal damage and to prove it he cited Anne Davies Case 4 Rep. 17. a. where it is said that to say that a woman hath a Bastard will bear Action because that if it were true she was punishable by the Statute of 18 Eliz. Further he said that if the words are not Actionable yet the Action will lie for the special damage which the Plaintiff hath suffered in the Ecclesiastical Court Justice Mallet the words of themselves are not Actionable because that the corporal punishment given by the Statute doth depend upon the non-payment and is not absolute of it self but the Action will lie for the temporal damage and therefore he conceived that the Plaintiff ought to have Judgment Justice Heath that the Plaintiff ought to have Judgment for the pecuniary Mulct is a good cause of Action there being in default of payment a corporal punishment given But here is not only injuria but damnum also which are the foundations of the Action upon the Case and if the words of themselves be not Actionable yet the Action will lie for the damage that the Plaintiff here suffered by the citation in the spiritual Court Bramston Chief Justice doubted it and he conceived it hard that the words should bear Action because as he said the corporal punishment doth meerly depend upon the not payment and upon the same reason words upon every penal Law should bear Action and therefore this being a leading Case he took time to consider of it It was said To say of a man that he had received a Romish Priest was adjudged Actionable and that was agreed because it is Felony At another day the Case was moved again and Justice Mallet was of the same Opinion as before viz. That the words themselves were not actionable but for the special damage that the Action would lie and he said that one said of another That he was a Recusant for which an Action was brought in the Common Pleas and he conceived the Action would not lie Justice Heath was of the same Opinion as before that the words oâ— themselves would bear Actioâ— and
should be punished for it he conceived that there is a difference betwixt an Officer of an inferiour Court which ousts the Common Law of Jurisdiction and one of the four Courts at Westminster for where an Officer justifies an Act done by the command of an Inferiour Court he ought to shew precisely that it was in a Case within their Jurisdiction and he cited 20 H. 7. the Abbot of St. Albâ—rs case Justice Heath contrary the party is servant to the Court and if he have done his duty it should be hard that he should be punished for it and he agreed that there is a difference betwixt the Act of a Constable and a Justice of Peace and the Act of a Servant of a Court for the Servant ought to obey his Master and although it be an inferiour Court yet it is a Court of Record and confirmed by Act of Parliament and all that is confessed by the Demurrer Bramston Chief Justice that the Plea is naught because that it is too general and incertain true it is that it is hard that the Officer should be punished in this case for his obedience to which he is bound and it is as true that the Officer for doing of an act by the command of the Court whether it be just or unjust is excused if it appear that the Court hath Jurisdiction but here it doth not appear that the Court hath Jurisdiction and if the Court had not Jurisdiction then it is clear that the Officer by obeying the Court when they have not Jurisdiction doth subject himself to an Action of false imprisonment as it is in the Case of the Marshalsy in the 10 Rep. but it was adjorned c. The Bishop of Hereford and Okeleys Case 196. THe Bishop of Hereford brought a Writ of Error against Okeley to reverse a Judgment given in the Common Pleas the point was briefly this One under the age of twenty three years is presented to a Benefice Whether the Patron in this case shall have notice or that lapse otherwise shall not incur to the Bishop which is grounded upon the Statute of 13 Eliz. cap. 12. And upon debate by the Counsel of the Plaintiff in the Writ of Error that which was said being upon the general Law of notice nothing moved the Court against the Judgment given in the Common Pleas upon solemn debate as it was said and therefore they gave day to shew better matter or else that Judgment should be affirmed The Reasons of the Judgment in the Common Pleas were two First upon the Proviso of the Statute which says That no Lapse shall incur upon any deprivation ipsâ— facto without notice Second reason was upon the body of the Act which is That admission institution and induction shall be void but speaks nothing of presentation so as the presentation remaining in force the Patron ought to have notice and that was said was the principal reason upon which the Judgment was given and upon the same reasons the Court here viz. Mallet Heath and Bramston Justices held clearly that the notice ought to be given or otherwise that Lapse shall not incur but they agreed that if the Act had avoided the presentation also that in such case the Patron ought to have taken notice at his peril being an avoydance by Statute if the Proviso help it not Mich. 17º of the King in the Common Pleas. 197. A. Said of B. that he kept false weights for which words B. brought an Action upon the case shewed how that he got his living by buying and selling but did not shew of what profession he was and by all the Court viz. Foster Reeve Crawley and Bankes in the Common Pleas the Action will not lie First because he doth not shew of what Trade or profession he was and it is too general to say that he got his living by buying and selling Secondly because although that he had shewed of what Trade he was as that he was a Mercer as in truth he was that yet the words are not actionable because there is nothing shewed to be done with them or that he used them and it can be no scandal if the words do not import an act done by the false weights for he may keep them and yet not use them and he may keep them that another do not use them and the keeping of false weights is presentable in Leet if the party use them otherwise not And where one said of another That he kept a false Bushel by which he did cheat and cousen the poor the same was adjudged actionable that is True and differs from this case for there he said he not only kept them but used them and cheated with them but it is otherwise in our case and this case was compared to Hobarts Reports where one said of another That he kept men which did rob upon the High-way and adjudged that the words were not actionable for he might keep them and not know of it Bankes the action upon the case for words is to recover damages and here it can be no damage First because he doth not shew of what profession he was and Secondly because although he had shewed it yet the words will not bear Action and Judgment was given against the Plaintiff 198. It was moved by Serjeant Wild That depositions taken in the Ecclesiastical Court might be given in evidence in a Trial in this Court and the Court was against it because they were not taken in a Court of Record and they said although the parties were dead yet they ought not to be allowed and by Bankes Chief Justice no depositions ought to be allowed which are not taken in a Court of Record and Foster and Reeve were of Opinion that although the parties would assent to it yet they ought not to be given in evidence against the constant rule in such case Crawley contrary for he said that a writing which by the Law is not Evidence might be admitted as Evidence by the consent of the parties 200. A man was bound to keep a Parish harmless from a Bastard-child and for not performance thereof the Obligee brought Debt upon the Bond the Defendant pleaded that he had saved the Parish harmless and did not shew how the Plaintiff replied and shewed how that the Parish was warned before the Justices of Peace at the Sessions of Peace and was there ordered by Record to pay so much for the keeping of the childe and because the Defendant had not saved him harmless c. The Defendant pleaded Nul tiel Record upon which the Plaintiff did demur And here two things were resolved First that the Plea Nul tiel Record upon an Order at Sessions of Peace is a good Plea because that an Order at the Sessions of Peace is a Record Secondly that notwithstanding Judgment ought to be given for the Plaintiff because the Dâ—fendants bar was not good in that he hath pleaded in the affirmative that he hath saved the Parish
when there is no Processus entred and that failing all fails and besides it is meer for delay of Justice and they agreed that a Writ of Error bearing Teste before Judgment is good as is the book of 1 E. 5. 4. because that there the foundation stands good and it is the usual course of practise for the preventing and superseding of Execution Tuder against Rowland 213. AN Ejectione firme was brought and in the Writ was vi armis but it wanted in the Declaration and whether it were Error or not or whether it were amendable or not was the Question and Shaftoe for the Plaintiff held clearly that it was not Error but the Court did not hear it at that time the Case was Entred Pasch. 16 Car. Rot. 333. 214. Bolstrood prayed a Prohibition to a Court-Baron as also an Attachment against the Steward for dividing of Actions to bring the same within their Jurisdiction to defeat the Common Law as also for refusing to suffer the Defendant to put in any other Attorney for him than one of the Attorneys of that Court and the Court awarded a Prohibition and the Steward Darey of Lincolns-Inn then at the Bar the Court ruled that he stand committed until he had answered to interrogatories concerning that misdemeanor and they said That an Attorney at Common Law is an Attorney in every inferiour Court and therefore ought not to be refused Rudston and Yates Case entred Hill 15 Car. Rot. 313. 215. RVdston brought an Action of Debt upon a Bond against Yates the Defendant demanded Oyer of the deed and condition thereof and upon Oyer it appeared that the Bond was conditioned to perform an award to which the defendant pleaded that the Arbitrators made no arbitrament upon which they were at issue and the Jury found this special Verdict that the Defendant Yates and one Watson submitted themselves to Arbitrament and found that the Arbitrators made an Award and found the Award in haec verba but further they found that Watson was within age at the time of the submission and whether upon the whole matter the Arbitrator had made any award or not the Jury left it unto the Court so as the Question is no other but whether an Infant may submit himself to an award or not for it was agreed that if the submission were void that the award was void and by consequence the Bond void and note that the Case was that Yates bound himself that Watson who was an Infant should perform the Award and the Condition recites that where Watson who was an Infant had submitted himself to an award that the Defendant binds himself that he should perform it c. So then if the Submission be void all is void no submission no award and so no breach of the Condition and therewith the Books agree 17 E. 4. 5. 19 E 4. 1. 28 H. 6. 13. 5 Rep. 78. 10 Rep. 131. b. And by Justice Mallet the submission is void and void in part void in all for a submission is an entire thing and therefore cannot be void as to the Infant and stand good as to the man of full age There are but two Books express in the point 14 H. 4. 12. 16 H. 6. 14. and none of those are of any authority in the first there is no debate of the Case And the second is a flat quere and as I conceive the better Opinion is that the award is void for where it is there objected that it may be for the avail of the Infant Br. tit Coverture and Infancie 62 says Quere of that for it may be that the recompence given by the award may be of greater value than the Law would give in the Action and therefore by possibility it may be a disadvantage unto him and the Case betwixt Knight and Stone Hill 2. Car. in this Court Rot. 234. where this very point was in question it was resolved that if the Infant had been bound to perform the award that the Obligation had been void Further it was agreed that if it appear afterwards to be to his prejudice that that shall make the award void but the principal point was not adjudged because that the parties agreed But whereas it was then and now also objected That if an Infant cannot submit himself to an Arbitrament that thereby he should be in a worser case than a man of full age for he may have done a Trespass which subjects himself to damages by suit in Law which if he cannot discharge by this way he should be in a worse condition than a mâ—n of full age for he should lose that advantage To that he answered that if an Infant should be permitted to that he might have loss thereby for he hath not discretion to chuâ—e a compâ—tent Arbitrator and an Arbitrator might give greater damages than the cause did require and he is worse than a Judge of the Court is he is not sworn a Judge is Besides an Inâ—ant hath divers priviledges which the Court would allow but an Arbitrator not If an Infant make default the same shall not bind him so if he confess an Action the same shall not bind him and therefore he is in better Case without submission than by it and if an Infant cannot chuse an Attorney much less a Judge for an Arbitrator is a Judge an Infant cannot bind himself Apprentice although it may be pretended to be for his benefit so 21 H. 6. 31. he cannot chuse a Bayliff yet that is for his benefit he cannot give an acquittance if he do not receive the money 5 Rep. Russels case but if it be apparent for his benefit it may be good as a Lease of Ejectment to try a title made by an Infant is good because it is apparent for his benefit an Infant is in custodia Legis and therefore we are bound by Oath to defend him Besides an Infant hath not power to dispose of his goods himself and then how can he give such a power to another For which reasons he conceives the submission void and if no submission no award and therefore he gave Judgment against the Plaintiff Quod nihil capiat per â—illam Justice Heath also against the Plaintiff True it is that in this Case a stranger is bound that the Infant shall perform the award but that recites the submission by the Infant and the issue is whether they made any award or not so as the ground is whether there be any submission or not for no submission no award that so by consequence Judgment ought to be given against the Plaintiff and he held clearly that the submission is void that an Infant cannot submit himself to an Arbitrament the Judgment of Arbitrators provided that they keep themselves within their Jurisdiction is higher than any Judgment given in any Court for if they erre no Writ of Error lieth to reverse their Judgment and there is not so much as equity against them and therefore it should be a hard
Judgment 226. A man libelled for Tithes in the Ecclesiastical Court in his libel he set forth how that the Tythes were set forth but that the Defendant did stop and hinder the Plaintiff to carry them away any other way than through the Defendants Yard and when he was carrying them that way the Defendant being an Officer did attach them for an Assessment to the poor and did convert them to his own use upon which a Prohibition was prayed because that the Tythes being set forth an Action of Trespass lieth at the Common Law but Serjeant Clarke was against the Prohibition because that the Libel is grounded upon the Statute of 2 E. 6. cap. 13. which is That if the Parson c. be stopt or let in carrying his Tythes that the party so stopping or letting should pay the double value to be recovered before the Ecclesiastical Judge But notwithstanding that it was resolved that a Prohibition should issue because he that will sue upon the Statute ought to mention the Statute or to make his demand secundum formam Statuti But here the Plaintiff doth not sue upon the Statute for he doth not mention it nor the double value as he ought for they all agreed that he ought to ground his Action upon the express clause of the Statute for the double value wherefore a Prohibition was granted 227. It was resolved upon the Certificate of the Pronotharies viz. Gulson Cory and Farmer that the custom of the Court was That if a man sueth another for such a sum or thing for which the Plaintiff ought to have special Bail and doth not declare against him in three Terms that the Defendant being brought to the Bar by a Habeas Corpus ought to be discharged upon an ordinary appearance and that they said is the course and practice in the Kings Bench and that was now resolved to be as a certain Rule from thenceforth in this Court by all the Judges viz. Foster Reeve Crawley and Bankes Chief Justice 228. It was said by Justice Reeve that if A. being seised of an Advowson grant the next presentation to B. and B. makes a Bond to A. to pay him twenty pounds when the Church shall fall void that that is Simony and so he said it was adjudged in this Court in Pooles Case and the whole Court did agree that it was Simony for otherwise by this way the Statute should be utterly defeated and note that it was said by Serjeant Rolls at the Bar That it had been often â—adjudged that the Obligor could not avoid such an Obligaion without special averment Palme against Hudde 329. PAlme brought a Quare impedit against Hudde and the case was thus It was debated by Serjeant Godbold the Plaintiff brought a Quare impedit against the Defendant the Defendant shewed how the King was intitled by reason of Simony and that the King had presented the Defendant and that he was persona impersonata of the presentation of the King the Plaintiff denied the Simoniacal contract upon which they were at issue and it was found for the Defendant so as that Judgment was given for the Defendant And the same Plaintiff brought this second Quare impedit against the same Defendant who pleaded all the matter before and the Judgment but did not say that he was now persona impersonata but that he was tunc persona impersonata and that was said by the Serjeant to be naught for he said that at the Common Law no Parson might plead to the Title of the Parsonage but only in the abatement of the Wrâ—t or such like Pleas sâ—e Lib. Entries 503 and 522. and 8 Rep Foxes case and he said that that is a Plea at the Common Law and not upon the Statutâ— of 25 E. 3. for then he ought to have pleaded that Est persona impersonata and not that fuit and that to enable him to plead to the Title of the Patronage according to the Statute for he who will plead according to the Statute ought to pursue it or otherwise his Plea is not good he cannot plead to the Title of the Patronage without shewing that he is persona impersonata the Books are clear 7 Rep. 25 26. 15 H. 7. 6 and 7. 2 R. 2. Incumbt 4. 4 H 8. Dyer 1. 27. And to say that tunc fuit persona impersonata is but an argumentative Plea that because he was then so he is now and such Pâ—ea is not good for it ought to be positive and not by way of argument or illation Besides it may be that he was persona impersonata tunc and not tunc for he might resigne or be deprived after or the like and therefore it is a Non sequitur that he was persona impersonata then and therefore now and it shall be intended rather that he is not persona impersonata nunc for paroles font Plea and the Plea of every man shall be taken strong against himself wherefore he concluded that the Plea was not good Foster agreed that the Parson cannot plead to the Title of the Patronage without shewing that he is persona-impersonata but the Question here is as he conceived Whether the Plaintiff be not stopped by this recovery and Judgment yet remaining in force to say the contrary Bankes Chief Justice It is true that generally the Parson without shewing that he is persona impersonata cannot plead to the Title of the Patronage But whether the Defendant cannot plead the Record and Judgment yet in force against the Plaintiff without shewing that he is persona impersonata that is the Question here Note it was the first time it was argued Harwel against Burwel in a Replevin in the Kings Bench. 230. THe Case was thus A man acknowledged a Statute to the Plaintiff and afterwards granted a Rent-charge to the Defendant afterwards the Statute is extended and safied and then the grantee of the Rent distreins And whether he might distrein without bringing a Scire facias was the Question And by Serjeant Rolls he cannot distrein without a Scire facias brought and he took it for a Rule That because the Conusee came in by matter of Record he ought not to be put out or disturbed without matter of Record for if that should be suffered it would be a great discouragement to Debtees to take this manner of security for their debts and the Conusor cannot enter without bringing a Scire facias and if the Conusor himself cannot enter it is a good argument à fortiori that the grantee of a rent cannot distrein without a Scire facias and that the conusor himself cannot enter without bringing a Scire facias vid. 15 H. 7. 15. 4 Rep. 67. Fullwoods case And the grantee of the Rent is as well within the ground and rule before put as the conusor himself and therefore he compared the case to the case in the 10 Rep. 92. that he who claims under another ought to shew the original conveyance But he took
imply an affirmative will bear an Action 19. It was said to a Merchant That he was a cousening Knave And the Opinion of the Court was the chief Justice and Justice Crooke being absent that the words were not actionable because he doth not touch him in his Profession for the words are too general But it was said That to call him Bankrupt was actionable And mall Cases where a man is touched in his Profession the words are actionable But to call a Lawyer a Bankrupt is not actionable Justice Iones said that Serjeant Heath brought an Action for these words One said of him That he had Vndone many and it was adjudged actionable because he touched him in his Profession 20. Kingston upon Hull is a Particular and Limited Jurisdiction and they held Plea of a Bond which was made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who was arrested upon it and suffered by the Sheriff to escape And the Opinion of the Court was clear That no escape would lie against the Sheriff upon the difference in the case of the Marshalsea That if the Court hold Plea of a thing within their Jurisdiction but proceed erroneously that it is avoidable by Error but if they have not Jurisdiction of the cause all is void and coram non Iudice 11 H. 4. and 19 E. 4. Acc. So in the principal Case for they held Plea of a thing which was out of their Jurisdiction and therefore the whole proceeding being void no Action can lie against the Sheriff for there was no Escape 21. Where a man is Outlawed and the Outlawry reversed notwithstanding the Original doth remain and the cause that the Original was determined was the Outlawry and now Cessante causa cessat effectus 22. A man made a Lease for years with exception of divers things and that the Lessee shall have conveniens lignum non sâ—â—ccidendo c. vendendo arbores c. Now the Lessee cut down Trees and the Lessor brought an Action of Covenant and the Opinion of the Court was That the Action would lie and that it is as a Covenant on the part of the Lessee because the Law gives him reasonable Estovers and by this Covenant he abridgeth his Priviledge 23. Justice Iones said and so it was agreed by the Court In what case soever there is a Contract made to the Testator or the Intestate or any thing which ariseth by Contract there an Action will lie for the Executor or Administrator but Personal Actions die with the Testator or Intestate 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator because the Testator now died Intestate because there is no privity And so it hath been many times adjudged 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case in a Writ of Error to reverse a Fine 25. WAterhouse levied a Fine the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied Waterhouse replied That he came here into England in August within the five years and upon that they were at issue The Jury found that he came over in Iuly And notwithstanding the Opinion of the Court was clear That the Writ of Error did not lie For although the Jury have found that he came over in Iuly yet the substance of the matter is that he was in England so as he might have made his Claim and therefore the Fine should bar him And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir who pleaded that he had nothing by Descent The Plaintiff pleaded that he had Assets in London and the Jury found Assets in Cornwal and good for the substance is whether he had Assets or not 26. If a Nobleman who is not a Baron or Earl of this Realm in an Action brought against him or by him be named Knight and Earl of such a place it is good because that although he cannot be sued or sue another by the name of Earl Baron c. yet by the name of Knight he may and that is sufficient 27. Writ of Error was brought here to reverse a Judgment given in Ireland it is a Supersedeas to the Execution for although the Record it self is not sent over for fear of losing the same in the water or otherwise yet a transcript is made thereof which is all one And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas there the Record it self is not sent but a Transcript thereof because we have not a Cirographer to receive it but the Transcript is all one Sir John Compton's Case upon the Statute of Winchester 13 Ed. 1. and 27 Eliz. of Robberies 28. SIr Iohn Compton Knight brought an Action against the Hundred of Olison or the like name for a Robbery done upon Red-hill in the County of Surry within the aforesaid Hundred and the Robbery was done upon his man and five hundred and ten pounds was taken from him And in this Case it was agreed by the Justices That although there be a remisness or negligence in the party who was robbed to pursue the Robbers or that he did refuse to lend his Horse to make Hue and Cry yet this doth not take away his Action nor excuse the Hundred if notice be given with as much convenient speed as may be as the Statute of 27 Eliz. speaks for them to make Hue and Cry And although the Party who was robbed doth not know the Robbers at the present time and thereof takes his Oath before a Justice of Peace as the Statute of 27 Eliz. hath provided and afterwards comes to know them and so he affirm yet this doth not take away his Action And it was resolved also that notice given in one Hundred five miles from the place where he was robbed is sufficient and the reason is because that the party who is a stranger to the Country cannot have conusance of the nearest place or Town Chief Justice That notice given at one Town and Hue and Cry levied at another is good And the Jury found for the Plaintiff And thereupon a Quaere was made by one who was of Counsel with the Hundred Whether such persons who become Inhabitants after the Robbery and before the Iudgment whether they should contribute And Justice Barckly said That all who are Inhabitants at the time of the Execution should pay it 29. A Vicar cannot have Tithes but by Gift Composition or Prescription For all Tithes de jure do appertain to the Parson 30. A man was bound to the Good Behaviour for Suborning of Witnesses Plowden against Plowden 31. PLowden the Son brought Trespass against Plowden the Father for taking the Plaintiffs Wife cum bonis viri And
Common Law there notwithstanding he shall recover costs also So in our Case these being Acts of Creation which give remedy where there was no remedy before shall be taken strictly according to the Letter and shall not extend to such penalties as in our case And upon this difference he cited the Cases in Pilfords case and especially the Case upon the Statute of 5 E. 6. of Ingrossers the Plaintiff shall not recover costs but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree That there be many Presidents in the Common 〈◊〉 That damages have been allowed in our very Case but that is the use of the Clerks and passed sub silentio without any solemn debate or controversie Vide Greislies case and the first Case of the Book of Entries Presidents and Judgments in this Court Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely A Judgment of the Common Pleas was reversed for this very point M. 36 Eliz. Ruddal and Wilds Case M. 44 45 Eliz. Rot. 22. Shepwiths Case Avowry for relief a stronger case Judgment was reversed because damages was assessed Hill 14 Iac. Rot. 471. Leader against Standwell in a Replevin Avowry was made for an Amercement in a Leet and found â—or the Dâ—fendant and damages assessed But the Entry upon the Record was thus Super quo nullo habito respectu c. The Plaintiff was discharged of the damages because nulla damna debent esse adjudicanda per Legem terrae but he shall have his costs But it was objected by Justice Crook That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages and that where the Plaintiff is Non-suit or verdict pass against him That Demurrer hath been construed to be within that Statute Notwithstanding that it is an Act of Creation I agree that and answer that Demurrer is within that Statute and the mischief of it but it is not so in our Case for in our Case there is no such mischief For there is no colour to extend it beyond the words of the Statute For which cause I conclude that the Judgment in this case ought to be reversed 65. A Clerk of the Court dwelling in London was chosen Churchwarden and prayed a Writ of Priviledge which was granted And it was agreed by the whole Court That for all Offices which require his personal and continual attendance as Churchwarden Constable and the like he may have his Priviledge but for Offices which may be executed by Deputy and do not require attendance as Recorder and the like from which the Justices themselves shall not be exempt for them he shall not have his Priviledge And where he hath his Priviledge for the not obeying thereof an Attachment lieth Swift against Heirs in Debt upon the Statute of 2 E. 6. for setting out of Tythes 66. THe doubt in this Case did arise upon two several Indentures found by special verdict which were made by the Vicar and Subchauntors Corrols of Lichfield one 2 E. 6. the other 2 3 Phil. Mar. The Question upon the Indenture of 2 E. 6. was Whether the Grant upon the Habendum be a grant of a Freehold to begin at a day to come or not The chief Justice Justice Crooke and Justice Barckley were clear of Opinion That it was a grant of a Freehold to begin at a day to come And for that the Case is thus In the Indenture of 2 E. 6. there is a recital of a former Lease for years And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined the remainder in Fee to another And upon that the three Justices before were clear in their Judgments That it was a Grant of Freehold to begin at a day to come which without doubt is void 8 H. 7. 39 H. 6. and Bucklers case 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse and Rent de novo A Rent de novo may be granted in futuro but not a Rent which is in being But Justice Iones in this Case was of Opinion That here is not any grant of a Freehold to begin at a day to come because in this case the Lease doth begin presently because the Lease recited is not found by the Jury and therefore now it is all one as if there had been no Lease at all contrary in the case of the King because it passeth a good estate of Inheritance to the Grantee And therefore if I make a Lease for years unto a man after the expiration of such a Lease where in truth there is no such Lease in being the Lease shall begin presently The Question upon the Indenture of 2 3 P. Mar. was no more but this The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton and name them in certain and in specie as Tithe-wool Tithe Geese Pigs Swans and the like and that in a distinct clause with especial Exception of four certain things After which came this clause All which were in the Tenure of Margaret Pâ—toe And the Jury sound that none of these Tithes were in hâ—r Tenure And whether that Grant were void or not was the Question And resolved by the whole Court nullo contradicente That the Grant notwithstanding this fallâ— reciâ—al was good For these reasons But first it was resolved That where they grant all their Tithes in Chesterton that it is a good grant and hath sufficient and convenient certainty 13 E. 4. and â—â—â—lands Case There are two Generalities 1. Absolute 2. Genâ—â—al in particular â—o here And in our Case it is as câ—râ—ain that demand in an Action may be for them by the name of all their Tithes in Chesterton So in the like manner an Action of Ejectione firme will lie For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here If the King grant all his Lands it is altogether incertain and void but if the King grant all his Lands in Dale or which came to him by the dissolution of such an Abby it is good because it is a generalâ—y in particular And it was agreed that convenient certainty is sufficient And therefore it was said by Justice Iones That if I grant all my Rents in Dale which I have of the part of my Mother that he conceives the same to be good The first reason wherefore this grant shall be good notwithstanding the false recital was this because the words here All which c. are not words of denotation or restriction but of suggestion or affirmation and therefore shall not make void the Grant And here the difference was taken between the Case of a common person and of the King Suggestion which is false in the Case of the King makes the Patent void but contrary in the case of a common person And
doubted thereof and did conceive that no costs should be given in this case and that upon Pilfords case 10 Rep. As to the Presidents he said that they did not bind him for perhaps they passed sub silentio And afterwards it was adjorned Johnson against Dyer 96. IN an Action upon the Case for words the Defendant having speech with the Father of the Plaintiff said to him I will take my Oath that your Son stole my Hens For which words the Plaintiff brought the Action But did not aver that he was his Son or that he had but one Son And it was holden by the whole Court Crooke being absent that the plea was not good Leake and Dawes Case 97. LEake brought a Scire facias in the Chancery against Dawes to avoid a Statute and the Case as it was moved by Serjeant Wilde was such Hopton acknowledged a Statute to Dawes and afterwards conveyed part of the Land liable to the Statute to I. S. who conveyed the same to Leake the plaintiff and afterwards the Conusor conveyed other part of the Land to Dawes the Defendant who was the Conusee by bargain and sale the Conusee extended the Lands of Leake the Purchaser who thereupon brought this Scire facias to avoid the Statute because that the Conusee had purchased parcel of the Land liable to the Statute and so exâ—inguished his Statute And this case came by Mittimus into the Kings Bench. And here it was moved by Serjeant Wilde for Dawes the Defendant in arrest of Judgment And taken by him for Exceâ—â—ion That the bargain and sale is alledged to be made to Dawes but it is not shewed that it was by Deed inrolled but yet it is pleaded That Virtute cujus viz. of Bargain and Sale the Conusee was seised and doth not shew that he entred And here it was said by the Court There are two points First Whether an Inrolment shall be intended without pleading of it Secondly Admitting not what Estate the Bargaineâ— hath as this Case is As to the first Justice Iones took this difference Where a man pleads a bargain and sale to a stranger and where to himself In the first case he need not plead an Inrolment but contrary in 〈…〉 Barckley agreed it and took another difference betwixt a Plea in Bar and a Count In a Count if a man pâ—â—ad a grant of a Reversion without attorâ—ment it is good contrary in Bar so in this Case The second question is admitting that the Deed shall be intended not to be inrolled without pleading What estate Dawes the Conusee hath before Entry the Deed not being inrolled For it was agreed by the whole Court That if he be a disseior or if he hath but an estate at will that the Statute is suspended And first whether he hath an estate at will at the common Law or not without Entry Barckley that he had But Iones and Bramston contrary and it seemed that he had an estate at will by the Statute And put the case of feoffment in Bucklers case 3. Rep. Where the Feoffee entreth before Livery that he hath an estate at will and Barckley agreed therein with him for the possibility of inrolment But Iones conceived that an estate at will could not be executed by the Statute And it was adjorned Curtisse against Aleway 98. THe Case was thus A woman was dowable of certain Land within the Jurisdiction of the Council of the Marches of which I. S. died seised She accepted a Rent by parol of the Heir out of the same Land in satisfaction of her Dower And afterwards there was a Composition betwixt them for defalcation of that Rent Afterwards there was an Action brought before the Council of the Marches for the Arrerages of the Rent where the question was Whether the Rent were in satisfaction of her Doweâ— or not and it was moved by Moreton for a Prohibition And it was granted by the Court because the same did concern Freehold of which they have not Jurisdiction for by the express Proviso of the Statute of 34 H. 8. of holding of plea of Lands Tenements Hereditaments or Rents But because that it appeared by the Bill that the woman was dead so as the realty was turned into the personalty viz. into Debt And therefore it was conceived by Evers Attorney of the Marches That although it was not within the Jurisdiction before yet being now turned into a personal Action that they have Jurisdiction But Iones and Barckley Justices were of a contrary Opinion and Iones said That an Action of Debt for Arrerages would not lie before them because it touched the realty which was denied by none but Evers Attorny Edwards against Omellhallum 99. IN a Writ of Error to reverse a Judgment given in Ireland in an Ejectione firme the Case was this as it was found by special verdict A Mortgager made a Lease for years by Deed indented and afterwards performed the Condition and made a Feoffment in Fee the Lessee entred upon the Feoffee who re-entred and the Lessee brought an Ejectione firme And the only question as it was moved by Glynn was Whether this Lease which did inure by way of Estople should binde the Feoffee or no and by him it did and Rawlyns case in the 4 Rep. 53. expresly and 1 2 Phil. Mar. Dyer agreeth And the whole Court Crooke only absent without any argument were clear That it should binde the Feoffee for all who claim under the Estople shall be bound thereby vid. Edriches case 13 H. 7. 100 Serjeant Iermayn came into the Court and shewed cause why a Prohibition should not be granted in the case of Skinner before who Libelled for Tythes of Coppice rooted up He agreed that for timber-trees above the growth of twenty no Tithes should be paid and so he said was the common Law before the Statute of 45 E. 3. which was but a confirmation of the Common Law And he said That as the body of the tree is priviledged so are the branches and root also which is a proof that where the body is not priviledged there neither shall be the root â—or branches And in our Case he Libels for roots of underwoods and the underwood it self being titheable therefore the roots shall be also tithable And he said that the 〈…〉 are not parcel of the Land But Justice Barckley was against it for they are not crescentia nor renovantia as Tithes ought to be and therefore no Tithes ought to be paid for them and he said that a Prohibition hath many times been granted in the like cases But Dr. Skinner did alledge a custome for the payment of Tithes of them And upon that they were to go to trial And here it was said that Dr. Skinner had used to have some special particular benefit of the Parishioners in lieu of Tithe of Roots And thereupon Barckley said That it is a Rule where the Parishioner doth any thing which he is not compellable by the Law to do
three years it did not give Lapse without notice for it was avoidance in Law not in Fact vid. Stat. 9. Eliz. for Excommunicating a striker in the Churchyard c. This Statute of 31 Eliz. differs from the Statute of 1 Eliz. for not reading of the Articles Those Statutes say that it shall be void ipso facto but not so in our Case And the Cases cited for Authority in the point are betwixt party and party and not in case of a third person as our case is 18 Eliz. Dyer A meer Lay-man is presented it is not ipso facto void without Sentence So it is of one within the age of nine years for he cannot govern others Trinit 4 Iac. in the Common Pleas Cooke and Stranges case The King Presents and before Institution Presents another it is good but in the interim the King ought to repeal his first presentment and that is a revocation vid. Dyer 292. a. where it is a Quere Whether he need not to alledge that a Repeal was brought and shewed c. The King grants and afterwards makes a second Grant of the same thing There are many Examples in Brooke and Fitzherbert that it is not good without a Repeal But this Case viz. of 6 H. 8 9. extends only to â—and and not to an Advowson c. But it was resolved by all the Judges That the Church was void by the Statute of 31 Eliz. to all purposes and to all persons as to the Pâ—râ—shioners as to a stranger who brings Trespass or Ejectione firme as to the King as to him who Presents and that without deprivation or Sentence declaratory in the Ecclesiastical Court And accordingly Judgment was given Hichcocke against Hichcocke 140. THe Case was this The Vicar did contract with a Parishioner to pay so much for encrease of Tithes and died and his Successor fued in the Ecclesiastical court for them And a Prohibition was prayed and granted by all the Justices And here it was said That a real Contract made by the Parson and confirmed by the Ordinary could not be altered in the Spiritual Court And by Serjeant Mallet a real accord though it be between Spiritual Persons and of Spiritual things yet it is only questionable at the Common Law 20 E. 3. Annuity 32. 38 E. 3. 6. 8 19. And by Serjeant Clarke Real composition by a Parson who claims not any encrease of the endowment to the Parsonage shall not binde his Successor The words of the Contract here were inter se convenerunt and that is no real Composition although that the Bishop call it so realis Compositio and his calling of it so doth not alter the nature of it but it remains a Personal agreement and so shall not bind the Successor although it be confirmed by the Bishop A Parson cannot do any thing to the damage of his Successor The Vicar took Oath That they were not for encrease of Tithes the Ordinary being a stranger to the Composition is not made a party by his Confirmation nor is the Composition altered by it Littleton Sect. 335. The Lord confirms the Land to the Tenant the same doth not alter the Tenure nor prejudice the Lord. The power of the Bishop augendi minuendi the Portion of the Vicar is by the Common Law for general Cure of Souls The Parson and Vicar have privity betwixt them 40 E. 3. 28. 31 H. 6. 14 16 Ass Annuity 32. 2 Rep. 44. Plow Com. 496. 21. E. 3. 5. 10 H. 7. 18. Dyer 43 84. 141. A Prohibition was prayed to the Court of Requests and the Case was thus A Feme sole possessed of a Term conveyed the same over in Trust for her and Covenanted with I. S. whom she did intend to marry that he should not meddle with it and for that purpose took a Bond of him They intermarried he may intermeddle with it but he shall not have it and by Equity he cannot assigne it by reason of the Covenant before marriage A Feme sole conveys a Term in Trust and then marrieth the husband assignes it the Trust not the Estate shall pass by Reeve and Foster But by all the Judges a Prohibition shall not be for it is matter only for Equity But if they direct Demisit or non demisit Assignavit or non c. then they exceed their Jurisdiction and a Prohibition heth 142. A woman brought a Writ of Dower and recovered and upon a suggestion made upon the Roll that the husband died seised a Writ of enquiry of Damages issued forth And before the Retorn thereof a Writ of Error was brought and it was by Steward against Steward and two things were moved 1. Whether Error would lie before the Retorn of the Writ of Enquiry or not 2. Whether the Writ of Error be a Supersedeas to the Writ of Enquiry And by Taylor and Rolls Serjeants That Error doth not lie before Judgment upon the Writ of Enquiry And this case they compared to Medcalfes case 11 Rep. 38. But by Serjeant Bacon it is well brought Dower is by the Common Law and damages are given by the Statute of Merton and that is the main Judgment 5. Rep. 58 59. And the very case is put in Medcalfes case 11 Rep and distinguished from other cases And it was argued by another Serjeant That the Error was well brought because that in Dower the Judgment doth determine the Original and therefore at the Common Law Error will well lie And the damages are given by the Statute of Merton but that doth not alter the Judgment or the nature of the Action It differs from the case of Judgment in an Ejectione firme and Accompt for after such Judgments Noâ—suit may be but not so in the case of Dower in which Judgment is quod recuperet c. A Precipe is brought against two one pleads to issue the other an insufficient Plea upon which Judgment is given No Error lieth before Judgment be given for the other for the whole matter is not determined But in several Precipes against two it is otherwise 34. H. 6. 18. Fitz. Scire facias 11 Rep. 39. a. b. In case of Ejectione firme it is a Quere if Error may be brought c. And Bankes Chief Justice said That it had been adjudged both ways but that differs from our case for in that damages are given by the Common Law Judgment is in a Quare impedit Error may be brought before c. which is like to our case for damages in both cases are given by Statute And where it was objected That thereby damages should be lost He answered No. For the Kings Bench may award a Writ of Enquiry of Damages And the 11 Rep. is express Authority 2. The Error is no Supersedeas c. 11 Iac. in Tincke and Brownes case it was ruled and resolved That a Writ of Error brought was not a Supersedeas to the Writ of Enquiry of damages But it was resolved by all the Judges that the Error
time or not The first hath been granted that there ought to be assent for the great inconvenience which might happen to Executors if Legatees might be their own carvers and so are all our Books except 2 H. 6. 16. and 27 H. 6 7. which seem to take a difference where the Legacie is given in certain and in specie there it may be taken without assent but where it is not given in certain there it cannot but he held clearly the Law to be otherwise that although it be given in certain yet the Legatee cannot take it without assent of the Executor for so the Executor should be subject to a Devastavit without any fault in him or any means to help himself which should be very inconvenient Then the second thing here to be considered is Whether there be an assent or not It is clear that if an Executor enter generally he shall be in as Executor and not as Legatee for that is best for him to prevent a Devastaviâ— and it is as clear that if he declare his intention to be in as Legatee that then he shall be so then the Question here is Whether the words in our Case be a sufficient declaration of the mind of the Executor to take the same as Legatee in the right of his wife or not and I hold that it is He agrees that the second words are not so weighty as the first but he held the first words are sufficient of themselves to make an assent and when he saith that then it remains to the Holloways that proves that he took notice thereof as a Legacie and that he would have it in that right although in truth the devise by Iohn Holloway was void so as it could not remain to them For the third he held that the assent came in due time otherwise it might be very prejudicial to Legatees for else by that means they may be many times defeated of their Legacies for put Case that an Executor will not assent and the Legatee dieth before he can compel him to assent or that the Legatee dieth in an instant after the devisor in the 5 Rep. Princes Case it is resolved that an Infant under 17 may not assent to a Legacie nor the administrator Durante minori aetate then put case that the Legatees die during the administration durante minori aetate in whose time there cannot be an assent It would be a vâ—ry great mischief if that in any of these Cases the Legatees should be defeated of their Legacies when by possibility they could not use any means to get them wherefore he held clearly that the assent of the Executor after the death of the Legatee came in good time and therefore he concluded for the Plaintiff Bramston Chief Justice also for the Plaintiff For the first point he held that there is a good assent and he said that Mannings Case hath the very words which our Case hath but my Lord Cooke did not speak of these words in the Report of the Case because he conceived that the payment of the money was a sufficient assent to the Legacie but further I conceive that it differs fully from Mannings Case for there it is found expresly that the Executor had not Assets and therefore it should be hard to make him assent by implication thereby to subject himself to a Devastavit for as I conceive an Executor shall never be made to assent by implication where it is found that he hath not Assets but there ought to be an express assent by reason of the great prejudice which might come unto him but in our Case it is not found that Lowe had not Assets an Infant cannot assent without Assets but if there be then it shall bind him and perhaps that was the reason that my Lord Coke did not report any thing of these words whether they were an assent or not and his passing over them without saying any thing of them seems partly to grant and agree that they did not amount to an assent A man deviseth unto his Executor paying so much and he payeth it it is a good assent to the Legacie so is Matthew Mannings case 8 Rep. and Plowden Comment Welâ—den and Elkingtons case and he said that an assent is a perfecting act which the Law favours and therefore he said that it was adjudged that where an Executor did contract with the devisee for an assignment of the Term to him devised that it was a good assent to the Legacie For the second point also he held clearly that the assent came in due time for otherwise it should be a great inconvenience for by that means it should be destructive to all Legacies for of necessity there ought to be an assent of the Executor and if he will not assent and the Legatee dieth before he can compel him to assent or if the Legatee dieth immediately after the Devisor before any assent to the Legacie in the first Case it should be in the power of the Executor who is a stranger to prejudice me and in the latter Case the Act of God should prejudice me which is against two Rules of Law that the Act of a stranger or the act of God shall not prejudice me wherefore without question the assent comes in due time Besides If a Legatee dieth before assent to a Legacie the same shall be assets in the hands of his Executors and the Legatee before assent hath an interest demandable in the Spiritual Court An Executor before probate shall not have an Action but he may release an Action because that the right of the Action is in him so in this Case although that the Legatee before assent hath not an interest grantable yet he hath an Interest releasable A man surrenders Copyhold-Land to the use of another and the surrenderee dieth before admittance yet his heir may be admitted and this Case is not like those Cases put at the Bar where there is but a meer possibility and not the least Interest as where the grantee of a reversion dieth before Attornment or the devisee before the devisor in those Cases the parties have but a meer possibility and therefore countermandable by death but it is otherwise in our Case as I have shewed before and therefore I conclude that here is a good assent and that in due time and therefore that the Ejectione firme brought by the Plaintiff well lieth Dale and Worthyes Case 212. DAle brought a Writ of Error against Worthy to reverse a Judgment given in the County-Palatine of Chester and the Writ of Error bore Teste before the Plaint there entred and whether the Record were removed by it or not was the Question and the Court viz. Mallet Heath and Bramston were clear of opinion without any solemn debate that the Record was not removed by that Writ of Error because that if there be not any plaint entred at the Teste of the Writ how can the Processus according to the Writ be removed
the Corporation spake these words of the Plaintiff to his Brethren of the Corporation He praedict the Plaintiff innuendo is an ignorant man and not fit for the place and he said that by reason of speaking of these words that they refused to elect him Steward and whether these words were actionable or no was the Question This case was argued twice in Trinity-Term by Callis and Gotbold Serjeants and the Judges seemed to incline to opinion That the words were Actionable but yet no judgment is given Selden against King in Common Pleas Trin. 17 Car. Regis 218. IN a Replevin the Case was thus A man granted a rent out of certain Lands and limited the same to be paid at a house which was another place off the Land and in the grant was this clause that if the rent were behind and lawfully demanded at the house that then it should be lawful for the grantee to distrein the Rent was afterward behind and the grantee distreined and upon traverse taken upon the demand whether this distress upon the Land which had been good in Law if there had not been a special limitation of demand at a place off the Land be a good demand as this Case is was the point Mallet Serjeant the distress is a demand in it self and there needs not any other demand although the rent be to be paid off the Land as here And it was adjudged in this Court about 3 years past that the distress was a sufficient demand but I confess that a Writ of Error is brought in the Kings Bench and they incline there to reverse it and there is no difference where the rent is payable upon the Land where not and so it was adjudged Trin. 3 Car. Rot. 1865 or 2865. betwixt Berriman and Bowden in this Court and he cited also Fox and Vaughans Case Pasch. 4 Car. in this Court and Sir Iohn Lambes case Trin. 18 Car. Rot. 333. in this Court both adjudged in the point and he cited many other Judgments Iermyn Serjeant contrary that the distress is no sufficient demand as this Case is he ought to demand it at the place appointed by the grant for it is part of the grant and the words of the grant ought to be observed 28 H. 8. Dyer 15. and in the Comment 25. a. it is said that Modus legem dat donationi and therefore by the same reason that the grantor may appoint the time and place of payment as here he hath done by the same reason he may appoint a place for the demand and that he shall make that demand before he distrein for the same is neither repugnant nor impossible nor against the Law and therefore good and by consequence ought to be observed and then he answered the Cases which were cited to be adjudged against him In Symmons Case in the Kings Bench there it was resolved that a distress was a demand in Law and a demand in Law is as strong as a demand in fact as it was said by Justice Barckley in debate of that Case But note that in that Case there was no time in certain limited and further in that Case the Rent was payable upon the land and therefore in that Case I agree that a distress will be a good demand because that the demand is to be made upon the land but it is not so in our Case In Sands and Lees case Trin. 20 Iac. in this Court there also the rent was payable upon the land Berriman and Bowdens Case Trin. 3 Car. cited before I agree was our very Case in point but there Judgment was given upon Confession and therefore doth not rule our Case and in Sir Iohn Lambes Case there was no Judgment given and therefore that doth not rule our Case but Melsam and Darbies case M. 6 Car. Rot. 389. in the Kings Bench a Case in the point where Judgment was reversed upon a Writ of Error there brought for want of demand and Selden and Sherleys case in that Court a Case also in the point was reversed Mich. 16 Car. in the Kings Bench upon a Writ of Error brought for want of demand wherefore I conclude that there ought to have been an actual demand at the house according to the grant in our Case and therefore the Traverse in this Case taken by the grantor is well taken Note that Justice Crawley said that Lambes Case was adjudged that there needed no demand and he said that there were three Judgments accordingly in this Court but Rolls Serjeant said that Darbies Case was reversed in the Kings Bench for want of a demand But note that Foster and Reeve Justices did incline that there should be a demand and so Bankes Chief Justice for he said that it is part of the contract and like a condition precedent for as in a condition precedent a man ought to perform the condition before he can take any thing by the grant so in this Case the grantee ought to make a demand to enable him to distrein for before the demand he is not by the manner of the grant which ought to be observed entitled to a distress wherefore he give direction to the Counsel that they would view the Records and shew them to the Court and further he said to them that where it appeareth that the Rent was demandable upon the land that those cases were not to the purpose and therefore wished that they would not trouble the Court with them Levet and Sir Simon Fanshawes Case in Common Pleas Trin. 17. Car. Regis 249. LEvett brought debt against Sir Simon Fanshawe and his Wife as Executrix of another and sued them to the Exigent and at the return of the Exigent the Defendant Sir Simon Fanshawe came in voluntarily in Court and prayed his Priviledge because he was an Officer of the Exchequer and whether he should have his priviledge in that case or not was the question and that rests upon two things First because he is sued as this case is meerly for conformity and necessity-sake and in the right of another viz. in the right of his wife as Executrix And secondly because he demands his priviledge at the Exigent Whitfield Serjeant that he ought to have his priviledge and he cited Presidents as he said in the point as Pasch. 44 Eliz. in the Exchequer Iames Ashtons case sâ—rvant to the Treasurer and Pasch. 23. Iac. Rot. 131. Stantons case also in the Exchequer in both which cases he said husband and wife were sued in the right of the wife and the husband had his priviledge But he cited a Case which was nearer our Case and that was Hill 8. Iac. in the Exchequer Wats and Glovers case where husband and wife were sued in the right of the wife as Executrix and he said that it was over-ruled that the husband should have his priviledge 22 H. 6. 38. and 27 H. 8. 20. in those Cases the husband and wife were sued in the right of the wife and yet the husband
was allowed his priviledge But see Reader 34 H. 6. 29. 35 H. 6. 3. against it And note that many of these cases come to the second point whether he may demand his priviledge at the Exigent or not but for that see 9 E. 4. 35. Br. Priviledge 22. 10 E. 4. 4. Br. Priviledge 40. Rolls Serjeant contrary that the Defendant ought not to have his Priviledge and he said that use practise and reason is against it and he took these differences First where the Defendants are coming to make their appearance and are arrested as in 22. H. 6. 20. and where they are sued in one Court and the husband demands his priviledge because he is an Officer in another Court as in our Case Secondly where he is Defendant and where he is Plaintiff And lastly where he is sued in his own right and where in the right of another as in our Case For in the first of these differences he shall have his priviledge in the latter not and it is to ouste this Court of Jurisdiction and therefore shall be taken strictly Besides if in this Case the Defendant should have his priviledge we should be without remedy for we cannot have a Bill against the wife and we have no remedy to make the wife to appear and therefore it should be a great prejudice to us if he should have his priviledge Wherefore he prayed that the Defendant might not have his priviledge Note that Bankes Chief Justice seemed to agree the differences put by Rolls and also he conceived that point considerable whether the Defendant had not surceased his time in this Case because he demands his priviledge at the Exigent and not before And note the whole Court viz. Foller Reeve Crawley and Bankes Chief Justice seemed to incline that the Defendant should not have his priviledge because that the Action was brought against him and his wife in auter droit viz. in the right of the wife as Executrix but no Judgment was then given Hillary 17º Car ' in the Common Pleas. Moss and Brownes Case 220. MOsse exhibited a Bill in the Court of Requests against Brown and in his Bill set forth that the Defendant was indebted unto him in the sum of 400 pounds for wares delivered to him and further he shewed how that the Defendant was decayed in his estate and was not able to pay him and therefore he was content to accept of an hundred pound for the whole and that the Defendant at the payment of the said hundred pound required the Plaintiff to give him a general release and then promised him in consideration that he would make him a general release that he would pay to him the residue of his debt whensoever God should please to make him able and the defendant divers times afterwards did renew his promise with the Plaintiff Further he shewed that now a great estate to such a value is fallen to the Defendant and that now he is able to pay him and notwithstanding refuseth so to do which is the effect of the Plaintiffs Bill To that the Defendant answered and pleaded the Statute of Limitations of Actions and the Court of Requests would not admit this Plea But note the Defendant pleaded first the general issue that he made no such promise upon which they were at issue and found against him and afterwards he pleaded the Statute of Limitation and upon the whole matter Serjeant Clarke moved for a Prohibition First because the Bill is in the nature of an Action upon the Case at the Common Law and whether he promised or not promised is triable at Law Secondly because the Court refused the â—â—ea of the Statute of Limitations which they â—â—ght not to do because there is no remedy in Equity against a Statute Serjeant Whitfield contrary that no Prohibition ought to be granted First because the Plaintiff hath no other remedy but in Equity because that the Assumpsit made before the release is discharged by the release and the Assumpsit which was after is void because there is no consideration the debt being released before Secondly our case is not within the Statute of Limitations for it is but a trust reposed in the Defendant that he would pay the residue when God should make him able and being a bare trust is not taken away by the Statute of Limitations But he agreed for any Action which is within the Statute and is superannuated that there is no remedy in Equity But in answer to that it was said by Clarke that there is no trust expressed in the Bill But notwithstanding that it was resolved by the whole Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice that no Prohibition ought to be granted for the reasons given before by Whitfield and they said that although no trust be expressed yet if it appeareth upon the whole Bill that there is a trust it is enough and he needs not to express it And note there was an order of the Court of Requests produced by Clarke by which it was ordered That the parties should take issue only upon the subsequent promise and should not meddle with the first which as the Court conceived made the Case a little worse notwithstanding the Court would not award a Prohibition for they said so long as they order nothing against the Law it is good and they ought to be Expositors of their own Orders therefore if it appeareth upon the merits of the Cause and the body of the Bill that they have Jurisdiction of the Cause and proceed as they ought be their Orders what they will it is not material and therefore it was resolved by the whole Court that no Prohibition should be granted in this Case Hill 17º Car. in the Common Pleas. 221. DVdley who was a Parson did libel in the Arches against Crompton for scandalous and defamatory words which words were these Thou meaning the Plaintiff lyest thâ—u art a fool and putting his hand behind him bid him kiss there and further said to him Thou hast spent so much a year in drunkenness and Sentence was given for the Plaintiff and now four years after Sentence the Defendant prayed a Prohibition and the Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice were against the Prohibition because the Defendant came too late but if he had come in due time the three Justices did incline that a Prohibition would have lien because that the words are words only of passion and anger and God forbid that all words spoken only in wrangling and anger should bear Action But the Chief Justice inclined that the Defendant was punishable in the Ecclesiastical Court for those words for he said that the suit there is pro salute animae reformatione morum and it was fit that his manners should be reformed who spake such words of a man in Orders and a reverend Minister And he said that although that he held not that where there is no remedy at Law
a difference where the party comes in by act of Law and where by the act of the party he who comes in by act of Law shall not be put to his Scire facias for so he should be without remedy and if that should be permitted it should a be subtile way for the conusor to avoid the possession of the conusee and then he himself to take benefit of it and that should be a fine way to defeat the Statute Besides by this way if the Statute should be satisfied by casual profit or if the time should be expired and the Statute satisfied by effluxion of time if in that Case the grantee should be permitted to distrein the beasts of the conusee for a great Rent perhaps before that the Conusee by possibility might remove from the Land it would be a great disturbance to the Conusee Besides if a stranger enter upon the conusee the conusee upon his regress may hold over but not so in this Case where the grantee of the Rent distreins and that should be also a great prejudice to the conusee But it was objected that the grantee of the rent could not have a Scire facias and therefore if he might not distrain he should be without remedy To which he answered that if it should be so it is his own fault for he might have provided for himself by way of covenant But he conceived that he might have a Scire facias for he said that it is a Judicial Writ issuing out of the Rolls which might be framed and made according to the case of any man and it is not enough to say thâ—â— there was never such a Writ granted in the like case but he ought to shew where it was ever denied besides it is not always necessary that he that shall have this Writ should be party to privy to the Record as appâ—areth by these Books 46 Ass. Scire facias 134. 32 E. 3. Scire facias 101. and 38 E. 3. 12. Br. Scire facias 84. Again it is not necessary that the Scirâ— facias should be either ad computandum or ad rehabendum terram as it was objected for as I have said before it may be framed according to the case of any man and vary accordingly wherefore he prayed Judgment for the Plaintiff and note that at this time Justice Heath seemed to incline for the Plaintiff Thorne against Tyler in a Replevin 231. THe Plaintiff shewed that the Defendant took certain Beasts of the Plaintiff such a time and place and detained them against gages and pledges c. The Defendant as Baily of the Mannor of the Lord Barckley made conusance of the taking of the cattle and said that long time before the taking of them the Lord Barckley was seised in see of a Mannor in Gloucestershire within which there were Copy-hold-Tenants time out of mind demiseable for one two or three lives that there was a custom within the same Mannor that if any copyhold-tenant did suffer his messuage to be ruin'd for want of repairing or committed waste that is presented by the homage that such tenant so offending should be amerced and that the Lord had used time out of mind to distrein the beasts as well of the tenant as of the under-tenant of such customâ—ry tenements levant and couchant upon such customary tenements for such amercement and further said that one Greening was tenant for life of a customary tenement within that Mannor and made a Lease unto the Plaintiff for one year and that 15 Car. the homage did present that Greening had suffered his Barn parcel of the customary Tenements aforesaid to fall for want of repair for which he was amerced to ten shillings and that in Iuly 16 Car. the Defendant as Bayly of the Lord Barckley did distrein the Plaintiffs cattle being under-tenant for the said amercement upon the said customary tenement and so he made conusance and justified the taking of the beasts as Bayly of the Lord Barckley The Plaintiff confessed that Greening was tenant and that he made a Lease to the Plaintiff for a year and further he confessed the want of repairing and presentment and the amercement upon it but he denied that there is any such custome upon which they were at issue and the Jury found for the Defendant that there was such a custom and it was moved in arrest of Judgment that the custom was not good because it was unreasonable for here the Tenant offended and the under-tenant is punished for it which is against all reason that one should offend and another should be punished for it Besides the under-tenant here is a stranger and the custom shall never extend to a stranger and therefore the custom to punish a stranger who is not a Tenant of the Mannor is a void custom Further it was said that the amercement properly falls upon the person and therefore being personal it cannot be charged upon the under-tenant But notwithstanding all these Objections it was resolved by all the Justices upon solemn debate that the custom was good and therefore that the avowant should have Judgment Justice Mallet custom si aliqua defalta fuerit in reparatione to amerce the tenant and to distrein averia sua vel averia subtenentis levant and coucbant upon the customary tenement is a good custom I agree that a custom cannot extend to a stranger who is not within the Mannor and therewith agreeth 3 Eliz. Dyer 194. b. pl. 57. Davis Rep. 33. a. 21 H. 6. and many other Books but the matter 〈◊〉 is whether the Plaintiff be a stranger or not and I conceive that he is no stranger but a good customary tenant and he shall have any benefit or priviledge that a customary tenant shall have although he holdeth but for one year and by the same reason that he shall enjoy the priviledge of a customary tenant he shall undergo the charge for Qui sâ—ntit commoduin sentire debeâ— â—nus and by the general custom of England every Copyholder may make a Lease for one year as is resolved in the 4 Rep. 26. â— and it is good and if so then the Plaintiff here cometh in by custom and is no stranger but a good customary tenant and therefore the custom may well extend to him as there is Dominus pro tempore so there is tenens pro tempore and such is the Plaintiff here and he held that the wife that â—ath her widows estate according to the custom of the Mannor is a good customary tenant A woman Copyholder for life where the custom is that the husband shall be tenant by the curtesie dieth I hold the husband in that case a good customary tenant In Gloucester where this Land is there is a custom that Executors shall have the profits for a year and I conceive them good customary tenants Besides this under-tenant here is distrainable by the Lord for the rents and services reserved by the Lord or otherwise
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
therefore I did not stick upon the Certiorare because what was done was by consent consensus tollit errorem if any be Now for the points as they arise upon the proceedings of the Commissioners and for the first I hold that the covenant doth well extend to this new wall and the making of it in the form of a horshooe is not material so as it be adjoyning to the land as it here was for that may be ordered according to their discretions it is a rule in Law that the covenant of every man ought to be construed very strong against himself and although that in this Case the new wall be not parcel of the premisses as it was at the time of the covenant because that the wall then in esse and to which the covenant did extend was a straight wall yet according to the words of the covenant this tax is towards the reparation of the premisses and if it should not extend to this new wall the covenant should be idle and vain and clearly the meaning of the parties was that it should extend to all new walls For the second point I hold the covenant although it be a collateral thing within their Jurisdiction true it is as it is said in 28 H. 8. that contracts are as private Laws betwixt party and party but you ought to know that their Commission gives them power to charge every man according to his tenure portion and profit and he who is bound by custom or prescription to repair such walls is not within the words of their Commission yet it is resolved in the 10 Rep. 139 140. in Kighleys case that the Commissioners may take notice of it and charge him only for the reparations where there is default in him and the danger not inevitable and by the same reason you may exclude this covenant to be out of their Jurisdiction you may exclude prescription also I agree that where the covenant is meerly collateral as if a man who is a stranger covenants to pay charges for repairing of such a wall that that is not within their Jurisdiction because he is a meer stranger and cannot be within their Commission but in our Case it is otherwise for the covenantor is occupier of the land and it hath been adjudged that if lands or chattels are given for the reparation of a Sea-wall that it is within their Jurisdiction and they may meddle with it that is as collateral as the covenant in question wherefore I hold that the covenant is within their Jurisdiction For the third point I hold that they may well charge the executor for the executor here hath the lease as executor but it was objected That the term is now determined and peradventure the executor hath not assets To that I answer that it is admitted that he hath assets for the Commissioners cannot know whether he hath assets or not and therefore he ought to have alledged the same before the Commissioners and because he hath not done it he hath lost that advantage and it shall be intended that he hath assets by not gain-saying of it Fourthly for the damages I first chiefly doubted of that but now I hold that it is within their Jurisdiction Put case that one in extreme necessity as in this Case disburse all the money for the reparations or the wall or Sea-bank if the Case had gone no further clearly he shall be repaid by the tax and levy after and I conceive by the same reason they have power to allow him damages and use for his mony for if it should not be so it would be very inconvenient for who would after disburse all the money to help that imminent danger and necessity if he should not be allowed use for his money and the Lessee here is only charged with the damages for the money collected which he had in his hands and converted to his own use and therefore it is reasonable that he should be charged with all the damages Besides they having conusans of the principal have conusans of the accessory as in this Case of the damages and he urged Fitz. 113. a. to prove that before the Statute of 23 H. 8. they had a Court and were called Justices but he held as it was agreed before That no Writ of Error lieth after this Statute but yet he said that the party grieved should be at no loss thereby for he said that where the party cannot have a Writ of Error nor Audita querela there he shall be admitted to plead as in 11 H. 7. 10. a. Where a Recognisance of debt passed for the King upon issue tried and afterwards the King pardons it the party after Judgment may plead it because Audita querela doth not lie against the King and where a man is not party to a Judgment there he cannot have a Writ of Error but there he may falsifie so I conceive that he may in this Case because he cannot have a Writ of Error and I conceive as it hath been said before that after the Statute of 23 H. 8. the Commissioners of Sewers have a mixt Jurisdiction of Law and equity For the Certiorare I will advise hereafter how I grant it although I conceive as I have said before that a Certiorare lies after the Statute and is not taken away by the Statute and I conceive in some clearness that it may be granted where any fine is imposed upon any man by Commissioner which they have authority to do by their Commission as appeareth by the Statute to moderate it in Case that it be excessive But as I have said before because that the parties by agreement voluntarily bound themselves by Recognisance to stand to the judgment of this Court upon the proceedings as they are certified that made me at this time not to stand upon the Certiorare wherefore I do confirm the decree 242. Rolls moved this Case A. did suffer B. to leave a trunk in his house Whether B. might take it away without the special leave of A. was the Question Justice Mallet leave is intended but Rolls conceived that he could not take it without leave Hammon against Roll Pasch. 18. Car. in the Common Pleas. 243. IN an Action upon the Case upon Assumpsit the Case upon special verdict was this A. and B. were bound joyntly and severally in a Bond to C. who released to A. afterwards there being a communication betwixt B. and C. concerning the said debt B. in consideration that C. would forbear him the payment of the said mony due and payable upon the said Bond till such a day promised to pay it c. C. for default of payment at the said day brought this Action upon the Case B. pleaded the general issue and thereupon the whole matter before was found by the Jury Serjeant Clarke here is not any good consideration whereupon to ground an Assumpsit because by the release to one obligor the other is discharged and then there being no
well lie Bramston Chief Justice for the Avowant that 〈◊〉 may well distrâ—in and cannot have a Scire facias but if he may have a Scire facias yet he may distrein without it There is no authority in the Law directly in the point in this Case I agree that if there be any prejudice to the conusee there it is reason to have a Scirâ— facias It was objected that it is a constant course to have a Scire facias in this Case But I believe you will never find a Scire facias brought by the Grantee of a rent or other profit apprender Besides the best way to judge this Case is to examine what the Scire facias is which ought to be brought and what the Judgment is which is given upon it whether he may recover the thing in demand or not vid. 32 E. 3. Fitz. Scire facias 101. 47 E. 3. 11. which are brought to have account and to shew cause wherefore he should not have the land see Fitz. Scire facias 43. v. The old Entries the Judgment which is given thereupon and the demand there is quod tenement praed redeliberatur and may the grantee in this Case have the land and thing in demand certainly not and that gives sufficient answer to the Cases objected by my Brother Heath where the second conusee shall have a Scire facias against the first Besides you shall never find in all our Books that a man shall have an attaint or a writ of error but he who may be restored to the thing lost by the judgment or verdict 2 R. 3. 21 Dyer 89. 9 Rep. the Lord Sanchars Case so in debt and erroneous Judgment upon it wherewith agreeth Doctor Druries Case 8 Rep. 12. 18 E. 3. 24. the feoffee shall have a Writ of Error because he shall have the land and see 32 E. 3. Scire facias 101. And the grantee shall not have a Writ of Error in this Case upon erroneous Judgment and for the same reason he shall not have a Scire facias and the grantee cannot have a Scire facias for want of privity and therefore I conclude that he cannot have a Scire facias for if he might certainly it would have been brought before this time either for this cause or for some other profit apprender It was objected that he shall not be in better condition than the conusor that is regularly true as to the right but he may have another remedy It was objected that the reason why that a Statute without a Scire fatias shall not be defeated is because he is in by Record and therefore shall not be defeated without Record but that is not the true reason but the reason is because the conusee ought to have costs and damages besides his debt as is Fullwoods Case 4 Rep and 15 H. 7. 16. is that the Chancellor shall judge of the costs and damages But 47 E. 3. 10. 46 E 3. Scire facias 132. by all the Judges that they lie in averment But here an inconvenience was objected that great arrerages should be put upon the conusee for a little mistaking to that he said that of a small mistake the Court shall judge and it shall not hurt him but if he hold over being doubly satisfied it is reason that he pay the arâ—erages and he put this Case A man acknowledgeth a Statute and afterwards makes a lease to begin at a day to come the lâ—ssee shall have a Scire facias for where remedy doth fail the Law will help him for which cause he concluded and gave Judgment for the avowant Trin. 18 Car ' in the Kings Bench. Paulin against Forde 248. AN Action upon the Case brought for words the words were these Thou art a thievish Rogue and hast stolen my wood innuendo lignum c. Gardiner the words are not actionable because it shall be intended wood standing or growing and not wood cut down and so he said it had been adjudged so if a man says of another that he hath stollen his Corn or Apples the words are not actionable because they shall be intended growing Bramston Chief Justice that the words are actionable because that wood cannot otherwise be meant but of wood cut down because it is Arbor dum crescit lignum dum crescere nescit for which cause he conceived that the words were actionable and it was adjorned Chambers and his wife against Ryley 249. ACtion upon the Case for words the words were these Chambers his wife is a Bawd and keeps a Bawdy-house for which words the Action was brought and the conclusion of the Plea is ad damnum ipsorum Wright the words are not actionable because it is not the wife that keeps the house but the husband and therefore the speaking the words of the wife cannot be any damage to him but admit the words were actionable the husband only ought to bring the Action because the speaking of the words is only to his damage Bramston Chief Justice the wife only is to be indicted for the keeping of a Bawdy-house and therefore she only is damnified by the words and the husband ought to joyn in the Action but that is only for conformity and the conclusion of the Plea is good for the damage of the wife is the damage of the husband and therefore ad damnum ipsorum good And here it was agreed that to say that a woman is a Bawd will not bear an Action but to say she keeps a Bawdy-house will Porter who was for the Action cited a Case which was thus One said of the wife of another that she had bewitched all his beasts and she and her husband joyned in an Action and upon debate it was adjudged good and there the conclusion also of the plea was ad damnum ipsorum Rickebies Case 250. RIckebie was indicted in Durham for Murder and afterwards the Indictment was removed into the Kings Bench where he pleaded his Pardon which Pardon had these words in it viz Homicidium feloniam felonicam interfectionem necem c. seu quocunque alio modo ad mortem devenerit And note there was a Non obstante in the Pardon of any Statute made to the contrary and whether these words in the Pardon were sufficient to pardon Murder or not was the Question Hales for the Prisoner said that the Pardon was sufficient to pardon Murder and in his argument first he considered whether Murder were pardonable by the King at the Common Law or not and he argued that it was the King is interessed in the suit and by the same reason he may pardon it It is true that it is Malum in se and therefore will not admit of dispensation nor can an appeal of Murder which is the suit of the Subject be discharged by the King but the King may pardon Murder although he cannot dispense with it see Bracton lib. 3. cap. 14. And the Law of the Jâ—ws differs from our Law
of peace are coram non judice 27. pl. 63. Presentments taken in an Hundred-Court are coram non judice 75 pl. 115. Corporation Churchwardens in London are a Corporation and may purchase Lands to the benefit of the Church but Churchwardens in the Country though a Corporation are capable onely to purchase Goods to the benefit of the Church 67. pl. 104. Covenant A man makes a Lease and that the Lessee shall have conveniens lignâ—m non succidend ' vendeâ—d ' arbores the Lessee cuts down Trees the Lessor may bring an Action of Covenant 9. pl. 22. Lessee of a house Covenants to repair it with convenient necessary and teneatable Râ—parations in Covenant the Lesser alleadgeth a breach in not repairing for want of Tyles and daubing with Morter and doth not shew that it was not tenentable therefore nought 17. pl. 39. A man by Deed conveys Land to his second Son by these words I do give and grant this Land to I. S. my second Son and his Heirs after my death and no livery made and dyes the Estate passeth not by Covenant and therefore the Son taketh nothing 50. pl. 78. Covenant with two severally and good 103. pl. 176. Counsel Counsellors Counsel saith to his Client that such a contract is Simony and he saith that Simony or not Simony he will do it and thereupon the Counseller maketh this Simoniacal contract this is no offence in him 83. pl 136. Custom and Perscription By the Custom of London a man may transfer over his Apprentices to another 3. pl. 6. By the Custom of London the Mayor may restrain any man from setting up his Trade within the City in a place unapt for it and for his disobedience may imprison him 15. pl. 34. Custom to cut Grass in the soyl of another to strow the Church good Custom 16. pl. 38. Custom or Prescription in non decinando by a Hundred is good but not by a Parish or particular Town 25. pl. 59. A Law or Ordinance where the Custom will warrant it that he that puts in his beasts in the Common beyond such a limit or bound shall pay 3 s. 6 d. is a good Law 28. pl. 64. Custom that if a man have see in Land that it shall descend to the youngest Son and if Tail that then to the Heir at Common Law is a good Custom 54. pl 82. Prescription to have Common for all beasts commonable is naught but for all beasts commonable levant and couchant is good 83 pl. 137. A Hille hath a Chappel and buries at the Mother-Church and for this have time cut of mind repaired parcel of the wall of the Church it is good for to excuse them from repairing the Church Inhabitants of a place prescribe to repair the Chappel of ease and in regard of this that they have been time out of minde freed from all reparations of the Mother-Church good prescription 91. pl. 151. Hille hath a Chappel of ease and a Custom that those with in such a precinct ought to find a Rope for the third Bell and repair part of the wall of the Mother-Church in consideration of which they have been freed of payment of any Tythes to the Mother-Church whether this be a good Custom or not quaere ubi supra Damage Cleer WHat Damage Cleer is and the prejudice that a man may have in this that he cannot have his Judgement before that he hath payed the Damage cleer 76. pl. 226. Damages and Cost Heir apparent ravished of full age his Fatâ—er shall not recover Damages 5 pl. 8. In Attaint the Verdict was affirmed and the Defendant in the Attaint prayed Costs but was denyed by the Court. 24 pl. 55. A man distraiâ—s for a Penalty asseâ—â—ed by Custom and distrainable by Custom and upon a Beplevin brought Judgement was given for the Avowant and Damage assessed and whether Damage ought to have been given or not quaere 38. pl. 64. Where Damages entire shall be nought and where not 47. pl. 76. 96. pl 166. 47. pl. 76. Where Costs and Damages shall be recovered upon a Penal Law where not 56. pl. 88. 61 pl. 95. Prisoner removing himself by Habeas corpus shall pay the costs of the removal otherwise where he is removed by the Plaintâ—ff 89. pl. 143. In an Accompt a man shall recover Damages upon the second Judgement 99. pl. 171. Debt A Sheriff levies money upon a Fieri fa cias Debt will lie against him and if he dyes against Executors 13. pl 33. In Debt upon an Accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an Accompt pro diversis mercimoniâ—â— without reciting the particulars 102. pl. 175. 105. pl. 182. Defamation If a man Libel in Court Christian for calling of him Drunkard Prohibition lies See Tit. Prohibition 1. D. Libelled in the Ecclesiastical Court for these words She is a beaâ—â—ly quâ—an a 〈◊〉 qâ—ean a copper-â—os'd qâ—ean and 〈…〉 and hath 〈◊〉 500 l. and 〈…〉 with whorâ—s and Regâ—â—s upon which a Prohibition was prayed and granted 89. pl. 144. A woman Libelled in the Spiritual Court against one for calling her Jade upon which a Prohibition was prayed and granted but if it be Libelled for calling one whore or bawd no Prohibition lies 99. pl. 170. By the Custom of London an Action lies for calling a woman Whore and ruled a good Custom 107. pl. 184. Default Appearance Administrator of one Outlawed for murder brought Error to reverse the Outlawry and was allowed to appear by Attorney 113. pl. 190. Demands Demandable Grantee of a Rent to be paid at the house and if the Rent be behinde and lawfully demanded at the house that then it shall be lawful for the Grantee to distrain whether a distress upon the Land be a sufficient demand as this Case is or not quaere 147. pl. 218. Denizen Alien Merchant goes beyond Sea and marries an Alien who have Issue the Issue is a Denizen 91. pl. 150. Deprivation Where a Church shall be void without sentence of Deprivation See Title Void Voidable Devises Devise of Goods to one for life the Remainder to another the Remainder is void 106. pl. 183. Divorce A man divorced causâ adulterii is within the Proviso of the Statute of 1 of King Iames ca. 11. but not a man divorced causâ— saevitiae 101. pl. 175. Discontinuance A man may Nonsuit without the consent of the Court but not Discontinue without the Courts consent 24. pl. 54. Dispensations Whether the King by a Non obstante in his Charter of Pardon may dispense with the Statute of 13 R. 2. ca. 1. or noâ— quaere If you peruse this Case you shall finde much excellent learning upon that point in what Case the King may dispense with Statutes in what not 213. pl. 250. Distress Horses traced together are but one Distress Fetters upon a Horse-leg may be distrained with the Horse 91. pl. 149. Distribution Whether the Ordinary after Debts and Legacies
help it 12. pl 32. A man brought Trespass for fishing in seperali â—â—sâ—eria sua and declares that the Defendant â—â—â—es ipsius câ—pit and good for that he had a qualified property in them ratione privilegii 48 pl. 77. If a Ship be taken by Letters of Mart and is not brought infra prâ—â—siâ—ia of the King who granted them the property is not altered 110 pl. 118. Quilibet potest renunciare juri pro se introducto AN Orphan may waive the Court of Orphans and sue in Equity for it is a priviledge which the Orphan hath quilibet potest renunciare c. 107. pl. 185. Recital WHere a false Recital shall not avoid a grant 31. pl 66. Grants of the King need not to recite Leases not of Record nor Copyholds 206. pl. 246. Recognizance It is no good plea to say that such a one was bound in a Recognizance and to conclude that it was secundum â—ormam statuti but he ought to say per scriptum obligatorium 76. pl. 117. Records An Order of the Sessions of peace is a Record and therefore the plea of nul tiel Record of Sessions of peace is a good plea. 121. pl. 200. Relation If a man be living at the day of Nisi prius and dies before the day in Bank the writ shall not abate so if a man be living the first day of Parliament and dies before the last yet he may be attainted for that they are but one day by relation 65. pl. 101. Releases Release to a bargainee before inrolment is not good 70. If divers recover costs joyntly in the Ecclesiastical Court and after one of them releases this is no bar to the others in a 〈◊〉 there for their costs so where a baron and feme recover costs there in the right of the wise and the baron releases this shall not bar the wife 73. pl. 112. See Title Prohibition Two men are bound joyntly and severally to a third who sues the bond against both and after appearance enters a Retraxit against one whether this shall amount to a Release so that it shall discharge the other or not quaere 95. pl. 165. Remainder and Reversion The King may grant an office in reversion but not a common person nor a Bishop without Custom 42 43. Remover of Records A. and B. were indicted for a murder B. flies A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Writ of Errour bearing Teste before the plaint entered is naught and the Record is not removed by it otherwise where is bears Teste before Judgement 140. pl. 212. Reparations The inhabitants of a Parish are bound by the Common Law to repair the high-wayes within the Parish except prescription binde any particular persons to it 26. pl. 62. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but not a highway 45 pl. 70. Repleader Where there is an insufficient bar and a good Replication after a Verdict there shall be a Repleader contrary where no Verdict 78. 125. Replevin Replevin lies of a Ship 110 pl. 188. Requests A. is bound to B. to deliver to him two hundred weight of Hops and B. to chuse them out of 24 bags c. whether B. is bound to request A. to shew the bags for him to make his election or not quaere 74. pl. 113. Rescous For a Rescous upon mean process no Action lies against the Sheriff otherwise in case of Execution 1. pl 1 Restitution Clerk of a Parish is put out by the Parson without cause no writ of Restitution lies 101. pl. 174. Barrister of one of the Temples was expelled the house whereupon he prayed his writ of Restitution and denied because that there is no body in the Inns of Court to direct unto they being no body corporate 177. pl. 235. Retorn of a Sheriff Sheriff in retorn of a Rescous saith that he was in custodia ballivi itinerantâ—s and that Rescous was made to him the retorn is naught because the Law takes no notice of the Baylie itinerant 92. pl. 153. Revocation The King presents and before institution presents another whether this be a Revocation of the former presentation or not quaere 86. Scire Facias UPon a Judgement in the Kings Bench there ought to be two Scire Faciases one against the principal the other against the Bayle but one only suffices in the Common Pleas and two Nihils retorned amount to a Scire feci 3. pl. 4. A man acknowledgeth a Statute and after grants a Rent the Statute is satisfied the grantee of the Rent may distrain without suingâ—a Scire Facias 124. pl 203. 159. pl 230. 207. pl. 247. Sequestration No Sequestration ought to be granted by a Court of Equity until all the process of contempt are run out the sequestring of things collateral is illegal 81. pl. 130. For sequestring of collateral things a prohibition was granted to the Court of Requests 99. pl. 151. Sewers Divers Exceptions taken to the proceedings of the Commissioners of Sewers upon Certificates of them 123. pl. 202. 191. pl. 241. Resolved upon question and debate that a Certiorari doth lie to remove the proceedings of the Commissioners of Sewers 192. pl. 241 Supersedeas Writ of Errour brought here to reverse a Judgment given in Ireland is a Supersedeas to the Execution 10. pl. 27. A Writ of Error is no Supersedeas of it self without notice 54. pl. 81. Writ of Error is a Supersedeas to the Writ of Enquiry of Damages 88. pl. 142. Tenant at will WHether a bargainee before inrolment or entry shall be a Tenant at will or not quaere 62. pl. 97. 69. 108. Tender The defendant upon an award was to pay to the plaintiff 8 l. or 3 l. costs of suit expended in an action of Trespass betwixt the plaintiff and defendant as should appear by a note under the Attornies hand of the plaintiff c. the plaintiff is not tyed to cause his Attorney to tender the note to the defendant but the defendant ought to seek the Attorney and request it of him 108. pl. 186. 156. pl. 225. Traverse A man pleaded the descent of a Copyhold in see the Defendant to take away the descent pleads that the ancestor surrendred to the use of another absque hoc that the Copyholder died seised the Traverse is naught 21. pl. 48. A man was bound to pay money at such a place in debt brought against him he pleaded that he payed the money at the place this is not traversable 77. pl. 122. Trespass An action of trespass lies upon the Statute of 2 E. 6. against any man that takes the Tythes 21. pl. 49. Trespass for fishing in sâ—perali piscaria of the Plaintiff 48. pl. 77. Trover conversion Trover and conversion lies of a Ship 110. pl 188. Tythes A Vicar cannot have Tythes but by dotation